Equality: Volunteers
	 — 
	Question

Baroness Afshar: To ask Her Majesty's Government what action they are taking to ensure that volunteers working for charities enjoy the same rights under equality legislation as those in paid employment.

Baroness Thornton: My Lords, the Government recognise the contribution to our society of volunteering. We are working with volunteer organisations to ensure that every volunteer is properly treated and has a positive experience. However, the diverse nature of volunteering and the varied relationships between volunteers and the organisations that engage them mean that equality legislation does not apply to volunteers in the same way as it does to employees. However, volunteers are currently protected from discrimination in so far as the organisation is providing goods, facilities and services to the public. These provisions will be retained in the equality Bill and extended to cover age.

Baroness Afshar: My Lords, I thank the noble Baroness for that very helpful Answer. However, sometimes the good name of volunteers is ruined by unfair dismissals or accusations. In the light of the very important contribution that they make, would it be possible to allow them access to an ombudsman so that they have a route to clear their name?

Baroness Thornton: My Lords, the noble Baroness raises an interesting point. I know that this Question has been precipitated by the fact that the citizens advice bureau in York, where she is from, has experienced some serious issues concerning the way in which volunteers have been managed over the past year. I am happy to say that they have been resolved through an independent review by John Stoker. I can appreciate that those volunteers might wish to draw some broader lessons from their experiences about where volunteers should seek support and advice when they need it. We are not convinced that seeking employment rights under equality legislation is the solution, although exploring the possibility of an ombudsman may be one.

Baroness Wilkins: My Lords, in the light of the York CAB experience, what statutory rights might the Government think appropriate for such workers to be able to clear their name?

Baroness Thornton: My Lords, I should declare an interest. I have huge affection and respect for the work undertaken by the CAB service. Indeed, I was a CAB manager 30 years ago and have been a member of two CAB management committees. The important point here is that the York CAB resolved the issue through an independent review by John Stoker. I do not wish to discuss the details of the case but it is important to learn the lessons from that review and ensure that those lessons are taken on board by other charities and organisations with volunteers. I assure the noble Baroness that the Government will examine the issues that the review raised and we will certainly take action where appropriate.

Lord Hodgson of Astley Abbotts: My Lords, I declare an interest as president of the NCVO. If the Minister is inclined to consider further regulation of charities, will she bear in mind that they are currently under considerable stress, financial and otherwise, given the economic circumstances, and be careful about the additional burdens that she puts on a sector that carries out such valuable work for our society?

Baroness Thornton: My Lords, this Government have done a great deal to support the third sector and charities. We have, through the Charities Act, for example, modernised the legislation as it applies to charities, and we have supported volunteering organisations to ensure that volunteers get a better deal. We know that in the economic downturn charities such as Crisis are seeing an increase in the number of people coming forward to volunteer, and we wish to support them in providing support. This Government have put an enormous amount of resource into supporting the third sector because we regard it as a very important part of our civil society.

Baroness Thomas of Walliswood: My Lords, I recognise the great service done to the nation by volunteers and the useful route that volunteering presents to people who have been out of work or unable to work for some years and want to get back into the labour market. If I understood the Minister correctly, she seems not to welcome the idea of including protection for volunteers in the equality Bill. Does she have any other legislative route to improve the situation for volunteers?

Baroness Thornton: My Lords, volunteers are already covered by the current prohibition of discrimination in the provision of facilities, in the same way as anyone else, in existing anti-discrimination legislation, which will be retained within the equality Bill. Indeed, it will be extended to cover age. The equality Bill will include powers to ban and justify discrimination, for example, against older people in the provision of goods, facilities and services. We are currently taking forward those developments but we are not considering legislation applying particularly to volunteers. The nature of volunteering is something that evolves through support and encouragement by the organisations that deal with volunteering.

Baroness McIntosh of Hudnall: My Lords, I am sure that my noble friend would agree that the business of volunteering, although it may occasionally throw up difficulties, is on the whole good not only for the organisations that have volunteers but the volunteers themselves? What are the Government doing to encourage more young people into volunteering?

Baroness Thornton: My Lords, we have been keen to promote volunteering across the population but particularly through the creation of V, which was launched in 2005 in the year of the volunteer. It is the new national youth volunteering programme; a charity that encourages 16 to 25 year-olds to volunteer. For example, the British Red Cross, through V, offers opportunities for volunteering. In April, it will be offering full-time placements for those who want to commit themselves to 30 hours a week over 13 weeks. V also points to its success in getting young people who are not in employment, education and training back into employment through their volunteering work.

Baroness Rawlings: My Lords, as a former president of the National Council for Voluntary Organisations, I ask the Minister to answer the question posed by my noble friend Lord Hodgson. Will she explain the difference between being an employed person and a volunteer?

Baroness Thornton: My Lords, that is a very good question. Noble Lords who are involved in the law will know that being a volunteer is quite different from being an employed person. We think that we have drawn the line of protection in the right place. There would be significant difficulties in extending to volunteers the protection from discrimination that currently applies in employment. That is because of the diverse nature of volunteering and the relationship between volunteers and the organisations that engage them. By its nature, there is not a contract that has the obligations that exist between employer and employee.

Schools: Music
	 — 
	Question

Baroness McIntosh of Hudnall: To ask Her Majesty's Government whether they will continue to support and extend the provision of music education in schools.

Baroness Morgan of Drefelin: My Lords, music is not only an enjoyable and beneficial activity in its own right, it offers enormous benefits right across a child's education. We believe that all children should have the opportunity to learn to play an instrument while at primary school, and in November 2007 we announced £332 million investment in music education, to include singing, new instruments, performance and access to free music tuition for primary pupils to 2011.

Baroness McIntosh of Hudnall: My Lords, I thank my noble friend for that extremely encouraging reply, but she will be aware that a recent Ofsted report, Making More of Music, indicates that the Government's very commendable investment is not yet paying off as consistently as it should. Will she ensure that an even stronger message goes out from her department to all schools, emphasising the benefits of music education not only to individual students but to the whole school community? Will she perhaps place particular stress on singing, which, as she and I both know, is very enjoyable and relatively cheap to deliver?

Baroness Morgan of Drefelin: My Lords, I thank my noble friend for her question and for giving me the opportunity to send a strong message to all those concerned about music education. We are extremely committed to making music education a reality for all children, particularly in primary schools, where we are investing significantly in the "Sing Up" campaign. We hope that, by 2011, all schools will be singing schools.

Baroness Walmsley: My Lords, will the Minister get the Qualifications and Curriculum Authority to produce clear guidelines about musical progression? Non-specialist teachers, in particular, find it difficult to plan and assess musical progression. Secondly, will the Minister show leadership for the "Sing Up" campaign by returning to the Parliament Choir for its performance of "Messiah" in York Minster in November?

Baroness Morgan of Drefelin: My Lords, the temptation to sing a song for this great House is almost getting the better of me. I love the Parliament Choir. When I came into the House, one of the most welcoming experiences was to be a member of the choir. I take the noble Baroness's point about progression in music very seriously. We are not expecting all primary school teachers, for example, to become music specialists, but we are putting in place the professional development that teachers need to be confident leaders of singing. We are also training young people. I will take the noble Baroness's concerns back to the department.

Baroness Verma: My Lords, can the Minister say how much of the £349 million Music Standards Fund allocated to local authorities for key stage 2 pupils has been spent and how the Government have monitored local authority outcomes?

Baroness Morgan of Drefelin: My Lords, I can say, for example, that we made a commitment to invest £10 million capital in the musical instrument fund. Those resources have been used to secure 94,000 new instruments, which come to £8.25 million for 2008-09. I think that is what the noble Baroness is driving at. If I have not picked up the right numbers, I shall write to her as quickly as I can.

Lord Low of Dalston: My Lords, the Minister will be aware of the inspiring example of the national youth orchestra of Venezuela. What can the Government do to promote in this country the Venezuelan initiative known as "El sistema", which has given rise to the national youth orchestra and has, in the past 30 years, taken 250,000 people off the streets, off drugs and out of prison, put a musical instrument in their hands and given an opportunity for the transformative power of music to point the way for the dispossessed in society to have a better life?

Baroness Morgan of Drefelin: My Lords, we have recently launched the "In Harmony" pilots, which are doing what the noble Lord suggests. They are taking place in particularly deprived communities in this country. There are three pilots, and we are investing £300,000 a year in developing the concept of using the orchestra environment as a way of working with children, particularly young children. As the noble Lord said, putting an instrument in the hands of four year-olds in—I am sorry; I will write to the noble Lord with the location of the pilots—and working with the whole community through the unifying force of music makes an impact on the lives of deprived children.

Lord Howarth of Newport: My Lords, does my noble friend agree that musical education can be particularly beneficial for young people, often boys, who have not otherwise been motivated or successful at school, by giving them a different chance to succeed, developing concentration, confidence, empathy and social skills for the benefit not only of the individual but of the whole school?

Baroness Morgan of Drefelin: My Lords, I agree. That is why we are focusing on primary schools and why we have made a commitment to give all children at key stage 2 one year of free instrument tuition. Our aspiration is that at least half those children will carry on with that tuition, and that by 2011 we will see 2 million learners taking instrumental lessons.

Lord Skelmersdale: My Lords, for a child to progress as a musician, they need a specialist teacher. How many local authorities do not have peripatetic music teachers?

Baroness Morgan of Drefelin: My Lords, I cannot tell the noble Lord that, but I will check. The Institute of Education recently undertook a survey of local authority music services, and we now know that about 50 per cent of children at key stage 3 are accessing music services. We expect that that will rise to 80 per cent by 2011. That is up from 13 per cent in 2005, so we are going in the right direction. I will check the figure that the noble Lord has asked for and will write to him.

Lord Filkin: My Lords—

Lord Wallace of Saltaire: My Lords—

Lord Hunt of Kings Heath: My Lords, shall we hear from my noble friend first?

Lord Filkin: My Lords, I am grateful for my noble friend's lack of bias, as ever.
	Does the Minister agree that it is essential that the good progress that has been made in getting primary school children to learn to sing in schools and the work of the cathedral music outreach programme, which is supported by the Government, must be strongly supported into future years?

Baroness Morgan of Drefelin: My Lords, this gives me the opportunity to stress that we want to ensure that all young people have the opportunity to enjoy a lifetime of singing, but we also want to promote and support the most talented musicians in our schools. We must have a strategy that will support children who want to attend a cathedral school and to have a career in music as well as all of us who want to enjoy it in our everyday life.

St Helena Airport
	 — 
	Question

Lord Hoyle: To ask Her Majesty's Government when the contract for the St Helena airport will be given the go-ahead.

Lord Tunnicliffe: My Lords, we announced on 8 December 2008 that there will be a pause in negotiations over the St Helena airport contract. We are reviewing whether it is right to proceed with this project in the present difficult economic climate and we will announce the outcome of our considerations just as soon as we can.

Lord Hoyle: My Lords, I thank my noble friend for that reply, but is he aware that the whole future of the island depends on the award of the contract for the airport? We have had an early decision that the contractor will withdraw, which means that hotel developments and St Helena becoming a leisure centre will not come to fruition. The island will still be dependent on the Government, so this is penny wise and pound foolish. Can my noble friend give me a little more definite information on when this will proceed? If it is not going to proceed, what plans do the Government have for the island?

Lord Tunnicliffe: My Lords, I cannot add very much detail to my response. Her Majesty's Government have had discussions with interested parties on this issue. We do not believe that the situation is black and white. Prior to and during the tender process, officials from the department undertook detailed consultations with interested parties to accommodate their concerns. More recently, my honourable friend the Parliamentary Under-Secretary of State for International Development, Mike Foster, met Impregilo, the bidding company, to explain the Government's current position. He has also met the Governor of St Helena to explain where matters stand and to hear his views. The bidding company has decided to extend its bid until the end of April.

Lord Shutt of Greetland: My Lords, the Minister will be aware that I visited St Helena a couple of weeks ago. It took two weeks to be there for 56 hours. Does he agree that, in the DfID annual report, the overall budget for overseas development is £5 billion and that the year-on-year cost of the airport for St Helena is likely to be less than 1 per cent of that? Does he agree further that, although the developed world has responsibilities for international development, the United Kingdom has a specific duty to those dependent overseas territories such as St Helena?

Lord Tunnicliffe: My Lords, I congratulate the noble Lord on his commitment in getting to St Helena for 56 hours. I am briefed that it was a pleasant experience. It is a wonderful island. I also congratulate him on his assiduous study of the DfID annual report—if only more would do that. I cannot entirely agree with his conclusion that the amount would be less than 1 per cent, but it is in the order of magnitude of 1 to 2 per cent. It is a little more than people realise. It is a significant sum of money and one has to take account of that in these difficult times. We accept that we have a specific responsibility for the three territories, to look after them and to sustain communications with them, but I can go no further on any assurances on this project.

Lord Waddington: My Lords, the noble Lord will forgive me for mentioning that, in 2000, I asked a series of questions pointing to the urgent need for the building of an airport on St Helena. I made a number of speeches to the same effect. Many years have passed since then, during which St Helena has not prospered and the population has fallen dramatically. I do not want to make a party-political point, but I urge the Minister to do his level best to get things cracking, because time is not on the side of St Helena. Something has to be done and done quickly.

Lord Tunnicliffe: My Lords, I can assure the House that I shall do all that I can to urge the Secretary of State to make an early decision, if only out of the sheer terror of returning here to give this sort of answer.

Lord Trefgarne: My Lords, will the noble Lord say what nature of airport is intended for St Helena? Will it take the largest aircraft or will it just be for regional flights?

Lord Tunnicliffe: My Lords, my understanding is that in the outline project the runway was to be 2,200 metres. As an ex-aeroplane driver, I can say that that means that you can cater for very large aeroplanes, but to get the sort of range that you need for St Helena, which, as has been illustrated, is in the middle of nowhere, you would be talking about relatively modest 737-type aeroplanes, producing the average journey to, say, South Africa.

Lord Brooke of Sutton Mandeville: My Lords, if there is to be an airport, there will be a need for a heritage experience for tourists to encounter. Do the Government have any idea how much would need to be invested in St Helena's heritage, of which there is plenty, to provide that experience?

Lord Tunnicliffe: My Lords, my understanding is that the island has considerable tourist-attraction potential. I have seen no figures that would require any non-commercial investment in that heritage experience other than the provision of communications links to enable it to happen. Those who have studied this say that, given the communications, the island will be a specialist, upmarket holiday destination. Despite all those encouraging words, this project will be expensive in difficult times.

Lord Grocott: My Lords, does my noble friend agree that it is further evidence of the strength in depth and quality of this Government that, when we get a Question about an airport runway, it is answered by a former airline pilot?

Lord Tunnicliffe: My Lords, I always agree with my noble friend's questions.

Gaza: Reconstruction
	 — 
	Question

Lord Dykes: To ask Her Majesty's Government what steps they will take to bring reconstruction aid into Gaza following the Sharm el-Sheikh conference.

Lord Tunnicliffe: My Lords, there was broad support at the Sharm el-Sheikh conference for the immediate, unconditional and sustained re-opening of crossings so that Gaza can be rebuilt. The United Nations promoted its new draft framework for humanitarian access. We hope that this will be endorsed at the Ad Hoc Liaison Committee meeting in April, which Israel will attend. The UK Government will continue to press Israel at the highest levels to increase access.

Lord Dykes: My Lords, I thank the Minister for that Answer. but is he able to reassure this House? In view of the present Israeli Government's flat refusal even to consider reopening the crossing points into Gaza, how on earth will rebuilding materials and equipment get in as soon as possible, bearing in mind the urgent humanitarian need?

Lord Tunnicliffe: My Lords, the nail has been hit on the head. The Israeli Government's position is not a flat refusal, but there is no question that Israel can do most to help this situation by addressing the whole issue of access. Her Majesty's Government take the access position extremely seriously. We have put particular effort into diplomacy, going back to 19 January when Mike Foster met Isaac Herzog, the Minister responsible for access. On 21 January, the Foreign Secretary had a private luncheon with the Israeli Foreign Minister to urge access and joined EU Foreign Ministers. On 4 February, the Prime Minister wrote to Prime Minister Olmert. On 16 February, the Foreign Secretary met Isaac Herzog again and the Secretary of State for International Development met him on 1 March. There is no question that the key issue in the short term is access. We are putting all our efforts into trying to break through the access deadlock.

Lord Wright of Richmond: My Lords, will the Minister explain how international aid will get into Gaza, not only so long as the Israelis maintain their blockade, but, perhaps as importantly, so long as we and our partners in the quartet refuse to speak to the effective authority in Gaza? What assurances have we received or sought from Mr Netanyahu that his continuing threat to destroy Hamas will not reduce any rebuilding done in Gaza to rubble yet again?

Lord Tunnicliffe: My Lords, I believe that the last assurance possibly is beyond the British Government and certainly way beyond my pay grade. We in DfID are trying to ensure that there are methods of getting aid through. We are using the present agencies that are working in Gaza. They are getting some aid through. We recognise that those agencies have to treat with Hamas. As noble Lords know, we do not believe that it is proper at this time to treat with Hamas, but that does not stand in the way of aid getting through. We certainly agree with the general thrust of the noble Lord's question that a long-term solution to peace in the area will need Arab and Palestinian reconciliation. The need for all countries to work together for a long-term solution is crucial. We praise very much Egypt's role in the recent past and we are very pleased to see the emphasis that the Obama Administration are putting on that.

Lord Turnberg: My Lords, we hope that this aid gets through to those who desperately need it. Gaza has a border with Egypt. Presumably, the Egyptians have as many anxieties as Israel about the diversion of funds by Hamas for the purchase of arms, just as it has hijacked the funds going through the UN and UNRWA. What steps can we take to ensure that the aid will reach the needy Palestinians rather than Hamas?

Lord Tunnicliffe: My Lords, the noble Lord is right that Egypt is concerned that aid gets to the right place. We are concerned. We believe, as a generality, that aid is getting to where it is needed. The agencies delivering that aid are giving us those assurances.

Baroness Rawlings: My Lords, the DfID website informs us that as of 26 February nearly £16 million had been allocated out of the £27 million pledged to help aid in Gaza. Is the Minister aware that, on 1 March, Douglas Alexander announced an extra £20 million in funding for reconstruction? Can the Minister give us further details on exactly how this and the £10 million not yet allocated from the previous announcement will be spent?

Lord Tunnicliffe: My Lords, it is being spent on an extremely wide selection of projects. This is not a money problem: the outcome of the Sharm conference, as the noble Baroness rightly says, was to bring our aid commitment up to £50 million in the short term and something above £250 million over the long term. However, what came out of Sharm was a pledge of £4 billion of new money, so this is not a problem of money—although it might be, in the longer term—but of access. It is a problem of Palestinian politics, in which we and the international community are trying to help, and of achieving peace in the region so that proper, long-term reconstruction can start.

Baroness Northover: My Lords, does the Minister not think it absolutely extraordinary that Tony Blair, who has been the quartet's envoy to the Middle East for the past two years, had not even visited Gaza until this week? What does that say for the even-handedness of the international community concerning that area of the world?

Lord Tunnicliffe: My Lords, having read through all of the briefings to prepare for this Question, the international community is being extraordinarily even-handed. It has, for instance, been forceful in getting across to Israel the importance of its duties in this situation. It has been even-handed in getting across the importance of stopping the smuggling; that is part of it. Tony Blair is doing the right job at the right time. The international community really does seem to be putting together a good, co-ordinated effort on this. It is now a matter of getting the Palestinians to work together, and of getting long-term peace in the region.

Baroness Afshar: My Lords—

Lord Hunt of Kings Heath: I am sorry, my Lords, but we are past the 30 minutes.

Corporation Tax Bill
	 — 
	First Reading

The Bill was brought from the Commons, endorsed as a money Bill, and read a first time.

Borders, Citizenship and Immigration Bill [HL]

Bill Main Page
	Copy of the Bill
	Explanatory Notes
	Amendments
	3rd Report from DP Committee
	5th Report from Constitution Committee

Committee (Third Day)

Amendment 92
	 Moved by Lord Avebury
	92: After Clause 41, insert the following new Clause—
	"The Ilois: citizenship
	In section 6 of the British Overseas Territories Act 2002 (c. 8) (The Ilois: citizenship) omit subsection (2)."

Lord Avebury: In moving Amendment 92 and speaking to Amendment 101A, I want to make it clear from the outset that they are not intended as a substitute for the right of the Chagos Islanders to return to their homeland, from which they were evicted by the decision of the Prime Minister, Harold Wilson, in April 1969. I declare an interest as vice-chair of the Chagos Islands APPG, whose objective is to help resolve the issues concerning the future of the islands and of the Chagossian people. The all-party group is, in fact, holding an important meeting with the Minister, Gillian Merron, as we speak. I am sorry not to be able to be there to hear her remarks, which could have a bearing on these amendments.
	As the Committee will be aware, the plight of the dispossessed Chagos Islanders has been considered by the courts, and what the noble and learned Lord, Lord Hoffmann, called "the whole sad story" of how,
	"the removal and resettlement of the Chagossians was accomplished with a callous disregard of their interests"
	is related in the judgment of the Judicial Committee in the case of Bancoult. It is also being considered by the Foreign Affairs Select Committee in another place as part of its report of July 2008 on the overseas territories. In response to that report, the Government said that they regretted,
	"the way the resettlement of the Chagossians was carried out and the hardship that resulted for some of them. We do not seek to justify the actions taken in the 1960s and 1970s. These regrets have been repeated on many occasions".
	Those pious sentiments have not been any benefit to the children of the Islanders born in exile. Although some of the 1,000 who are resident in the UK have become full UK citizens, they have to pass the habitual residence test and, even then, many cannot afford the enormous fees that are payable for full citizenship.
	The Home Office does not seem to be properly aware of these problems, although they were highlighted by the Foreign Affairs Committee. I wonder whether the Minister could at least tell us how many of the 1,000 people in the UK have managed to get full British citizenship.
	We are asking your Lordships now to consider the rights of the Chagos Islanders and their descendants to full British citizenship. Under Section 6 of the British Overseas Territories Act 2002, a person who was born after 26 April 1969 and before 1 January 1983 to a woman who was a citizen of the United Kingdom colonies by virtue of her birth in the British Indian Ocean Territory, and who was neither a British citizen nor a BOTC immediately before commencement of Section 6, became a British citizen by descent. The omission of subsection (2) would mean that they became a full citizen and thus able to pass on their citizenship to their own children.
	Amendment 101A would delete the requirement in Section 6(1)(a) that a person be born after 26 April 1969 to be eligible for British citizenship. That was the date when the removal of the population from the islands was authorised. It appeared in Section 6 without consultation with the Chagossians or their advisers. I believe that the idea was that, before that date, anyone who left the islands was free to return. In that scenario—for example, if they went to Mauritius—they were voluntarily absent and any mother who wished to do so could have returned to give birth and thus to confer citizenship on her child.
	That was not in fact the case. It has now been made clear that difficulties of return arose much earlier. The planning for the evacuation of the islands was started in August 1964; the Exchange of Notes with the USA on Diego Garcia was at the end of 1966; and the shipping link between Mauritius and the Chagos Islands was severed when Mauritius became independent in March 1968. In the 1950s and in the 1960s up to that date, people came and went, almost entirely to Mauritius, and had no way of being aware that giving birth outside the islands would seriously handicap their child 40 years down the line.
	In response to the Select Committee, the Government said that there was no precedent elsewhere in nationality law for citizenship to be extended to a third generation born outside the UK or in an overseas territory. But that is not correct. They concede that, until 1914, there were exceptions, but even under the British Nationality Act 1981 a person serving in the Armed Forces or in a community institution who was a British citizen by descent could transmit his or her citizenship to a child. Even if there were no precedents at all, equally there is none that I am aware of for the expulsion from the dependent territory of the whole population. That was a shabby and disreputable episode. It becomes even more despicable if we now prevent the children of the victims regaining rights that they would have had if their parents had been able to remain in their ancestral lands. I beg to move.

Baroness Whitaker: I warmly support these two amendments. It is generally held that the Chagos Islands have had an extremely raw deal. Many people have been sent into hardship and exile against all natural justice, and the right solution is certainly to find a way for them to return to their home. We hope that the deliberations of the all-party group with the Minister this afternoon will be a step in that process. However, this amendment at least will deliver something by way of a small quantum of justice in the interim. I hope that the Minister can entertain both amendments.
	I apologise in advance if the length of the debate prevents my hearing the Minister's answer, because I have an appointment, but I shall certainly read it with great care in Hansard.

Lord Ramsbotham: I, too, support the noble Lord, Lord Avebury, in these amendments, and declare a similar interest, holding a similar position in the Chagos Islands all-party group. My interest was heightened when, three years ago, I was invited by the Mauritius Government to inspect their prison system and was made aware of the situation regarding the Chagos Islanders, which was represented to me as being rather a blot on the UK's human rights record. At that time it was mentioned that the Foreign Office had carried out a feasibility study on the return in 2002, but it had been turned down for, among other things, being too expensive. I suggest that that feasibility study of 2002 is now totally out of date. It may be of interest to the Committee to know that the Chagos Islands all-party group brought this situation to the personal attention of the new President of the United States, because not only is Diego Garcia a United States base but the agreement with the United States is due for renewal in 2016. It is extremely appropriate to press ahead with what is required; while it may seem strange to attach the issue to this Bill, in the whole context of nationality and our records in this area it is an extremely appropriate vehicle. I hope that the Government will listen to what is being said.

Lord Brett: I rise to respond to the very powerful arguments made by the noble Lord, Lord Avebury and my noble friend Lady Whitaker, and with regard to the enormous respect that we all have for the noble Lord, Lord Ramsbotham, and the powerful case that he puts yet again.
	I have several pages of Civil Service prose to read out and, indeed, for the remainder of the amendments to this part of the Bill I have copious pages of Civil Service prose. However, I should like to suggest a different approach. In responding to Amendment 90—it seems a long time ago, but it was on Monday—I gave an undertaking that the Government would consider amendments from the noble Lord. I suggest that we should consider Amendments 92 and 101A, along with the remaining amendments to clauses in Part 2, with the exception of Amendment 105A which, to my embarrassment I must return to, having failed to deal with it on Monday.
	The purpose of my suggesting that I discuss those amendments not in the form of a considered debate today, which would take a very long time, but in the form of a discussion, is to look at the cases that have caused noble Lords to table the amendments, to consider the decisions taken in respect of those cases and the principles behind those decisions, and to see whether policy and other practical measures can be found to resolve them. The noble Lord will, of course, be perfectly able to bring back any or all of his amendments at Report, but I hope that we can at least make some progress on some of them in the intervening period. That would be the most practical way in which I can offer the House urgent attention to the points raised, with the opportunity for a fuller debate at Report.

Lord Avebury: A few days ago, I did not expect to get such a favourable answer from the Minister on either this amendment or all the other amendments that will affect Part 2, so we seem to be making good progress. I accept with alacrity his offer of further discussions on these matters before Report, and particularly on the one currently under discussion, on the situation of the Chagos Islanders. I am sure that my colleagues who are meeting Gillian Merron in Portcullis House at this very moment will be delighted to hear what the Minister has said. I hope that Gillian Merron will have been on message and will have told the special meeting of the Chagos Islands APPG about the Minister's kind offer to your Lordships this afternoon. For the time being, I am happy to withdraw this amendment. We will no doubt be able to dispose of the subsequent amendment on Part 2 in good time so that we can finish by 10 pm. I beg leave to withdraw this amendment.
	Amendment 92 withdrawn.
	Amendment 93
	 Moved by Baroness Miller of Chilthorne Domer
	93: After Clause 41, insert the following new Clause—
	"Stateless children of British nationals
	(1) Schedule 4 to the British Nationality Act 1981 (c. 61) (amendments to Immigration Act 1971) is amended as follows.
	(2) In paragraph 4, omit sub-paragraph (1)(c).
	(3) In paragraph 4, for sub-paragraphs (2)(a) and (2)(b) substitute—"shall be registered under it as a—
	(a) British citizen, or
	(b) in the case of a child whose mother or father is, or would have been but for their death, a British overseas territories citizen, as a British overseas territories citizen."
	(4) In sub-paragraph (4) of paragraph 4, for "sub-paragraphs (1) to (3)" substitute "sub-paragraph (1)"."

Baroness Miller of Chilthorne Domer: The purpose of this amendment is to insert into the Bill a new clause dealing with the stateless children of British nationals. This amendment ensures that those stateless children born after 1 January 1983 to British nationals of any type, wherever in the world, are entitled to be registered as British citizens; and that the children of British Overseas Territories citizens can be registered as both British citizens and British Overseas Territories citizens.
	A British citizen born outside the UK and British Overseas Territories will be a British citizen by descent. That is, he or she will not be able automatically to transmit citizenship to his or her children. In addition, a British Overseas Territories citizen born outside the overseas territories will be a British Overseas Territories citizen by descent. That is, he or she will not be able automatically to transmit citizenship. It is not always possible for the children of British citizens to satisfy existing provisions for registration to obtain citizenship for want of compliance with residence requirements in the UK or in the British Overseas Territories. In certain circumstances, where the state of residence prohibits the acquisition of its nationality, often on racially discriminatory grounds, the children of such persons are left stateless.
	There is a problem here. Bearing in mind what the noble Lord has said about discussions in between times, I will not go through all the cases that I have before me, save to say that it would be interesting to learn from the Minister whether this applies to many people. In the briefings that I have received, we have been talking about, perhaps, a few dozen here or there, as in, for example, the case of children in Zambia, where it is conservatively estimated that about 20 children of Asian descent are affected by statelessness. We are not talking about hundreds or thousands in such cases. I want to put the scale of the problem on record.
	The current provisions, as the Minister will know, are found in the British Nationality Act 1981 and are very restrictive. They demand three years' residence in the UK, with up to 270 days' absence, in circumstances where the stateless child has no passport with which to be lawfully admitted to the UK or thereafter reside. They also provide for the registration of the child in a category of British nationality—meaning British overseas citizenship or British subject status—that is little better than statelessness. That is one of the categories of British nationality that carries with it no right of abode in the UK or any other country.
	This is important at this moment because, with the removal of the UK's reservation on the UN Convention on the Rights of the Child—and I am sure that we will talk further about that this afternoon—this situation should no longer be tolerated by the Government. As drafted, the amendment would remove the requirement for the person born outside the UK and British Overseas Territories to be in the UK or an overseas territory for three years ending on the date of application. It would further ensure that the person is entitled to be registered in a category of British nationality that carries with it the right of abode so as to be entitled to live and work here—that is to say, to be registered as a British citizen and, as the case may be, as a British Overseas Territories citizen.
	The amendment would bring rights to stateless children of British nationals born outside the UK and British Overseas Territories. That is an important matter to address, particularly in light of the UN Convention on the Rights of the Child. I beg to move.

Lord Brett: I am grateful to the noble Baroness for setting out the reasoning behind the amendment for our illumination and understanding and for my officials to note the point that she makes. This issue will be a good starting point for the discussions that I am suggesting.

Baroness Miller of Chilthorne Domer: I look forward to those discussions. I beg leave to withdraw the amendment.
	Amendment 93 withdrawn.
	Amendment 94 had been withdrawn from the Marshalled List.
	Amendment 95
	 Moved by Baroness Miller of Chilthorne Domer
	95: After Clause 41, insert the following new Clause—
	"Acquisition by registration: minors
	(1) Section 3 of the British Nationality Act 1981 (c. 61) (acquisition by registration: minors) is amended as follows.
	(2) In subsection (2), omit the words "made within the period of twelve months from the date of birth".
	(3) In subsection (3), omit paragraphs (b) and (c)."

Baroness Miller of Chilthorne Domer: In contrast, this amendment is designed to probe the Government on the different requirements for registration of the children of British citizens. The amendment would remove the requirement to have to be registered within 12 months of birth, the status of their grandparents set out in paragraph (b) and the requirements relating to their parents' residence in the UK and absences of no more than 270 days set out in paragraph (c). This gives us an opportunity to probe why these requirements individually as well as collectively are held to be necessary. Not all British citizens realise that children born outside the UK or a qualifying territory will not be British citizens. Many people fail or have failed to register their children through lack of knowledge of the provisions. This is an equally crucial area to address when it comes to looking at the rights of children and to ensure that we have not left any of these issues unexamined. I beg to move.

Lord Brett: I have seven pages of text with which I can regale noble Lords, but in practice it would be more sensible for me to pass an urgent note to the noble Baroness. It will be fodder for our discussions on problems in this area about which we are hoping to find some solutions.

Baroness Miller of Chilthorne Domer: I thank the Minister for his reply. Given the brevity of his answer, which is a precursor to everything he will discuss with us, I hope that he will appreciate that I did not speak to Amendment 101, which deals with the same subject, to which we would also like an answer. In the mean time, I beg leave to withdraw the amendment.
	Amendment 95 withdrawn.
	Amendment 96 not moved.
	Amendment 97
	 Moved by Lord Avebury
	97: After Clause 41, insert the following new Clause—
	"British citizenship: registration of certain persons without other citizenship
	In section 4B of the British Nationality Act 1981 (c. 61) (acquisition by registration: certain persons without other citizenship) omit subsection (2)(b) and (c)."

Lord Avebury: This amendment seeks to obtain clarification of the way that the Secretary of State gets to be satisfied that a British overseas citizen, British subject or British protected person applying to register as a British citizen does not have any other citizenship or nationality now or did not have at any time since 4 July 2002. This means that where an applicant is deemed to have or to have had some other nationality, he has to obtain a certificate from the authorities of the state in question showing that in fact he is not its citizen. The Minister will no doubt say that the requirement has operated reasonably in the sense that the UKBA will not demand proof of non-citizenship of countries with which the applicant manifestly has no connection. However, where the applicant is connected with a country by reason of his ethnicity, they do ask for proof, which can be difficult or sometimes impossible to obtain. It is alleged that there are instances where individuals with no other citizenship who are unable to extract a letter by normal means from their consulates have obtained one by giving a present to the appropriate official. Whether or not that is true, it is an obvious risk.
	Amendment 98 provides noble Lords with an opportunity to debate the proposals in the review of the noble and learned Lord, Lord Goldsmith, entitled Citizenship: Our Common Bond. It was commissioned by the Government, but studiously ignored by them since it was published a year ago. In their response to the Path to Citizenship consultation last July, all the Government said was:
	"We have carefully studied Lord Goldsmith's report into citizenship".
	Now is the time for the Minister to provide a little more information to noble Lords about the Government's thinking on the recommendations.
	In almost every other country of the world, the idea that a person could have a nationality but not a right of abode would be treated as nonsense. The most fundamental right of a national is to enter, and reside in, the country of his nationality. All other rights and entitlements stem from the right of abode. We in this country are unique in that British citizens derive their right of abode from an Act of Parliament—the Immigration Act 1971—rather than intrinsically from their nationality. We have been unable to ratify Protocol 4 of the European Convention on Human Rights, to which 42 out of the 46 member states of the Council of Europe adhere, because Article 3(2) of the convention requires that:
	"No one should be deprived of the right to enter the territory of the State of which he is a national".
	The noble and learned Lord, Lord Goldsmith, recommended that applicants in all the residual categories of citizenship, except BOTC and BNO—the latter has already been discussed—should be given access to full British citizenship. We would add BNOs, but stipulate—although I acknowledge that the necessary words are not in the amendment—that applicants from these groups should have no other citizenship. I beg to move.

Lord Brett: Again, I am grateful to the noble Lord for setting out the reasoning behind the amendment. I am afraid that I have nothing to add to previous statements made about the report of the noble and learned Lord, Lord Goldsmith, which the Government are studying. Many points that have been made in relation to these amendments are pertinent to discussions that we will have on Amendment 90. It would be useful for us to put this matter into that package and discuss it at that time.

Lord Avebury: I am happy to accept the noble Lord's kind offer that we should include this amendment in the package. I beg leave to withdraw the amendment.
	Amendment 97 withdrawn.
	Amendment 98 not moved.
	Amendment 99
	 Moved by Baroness Falkner of Margravine
	99: After Clause 41, insert the following new Clause—
	"Legitimacy
	(1) The British Nationality Act 1981 (c. 61) is amended as follows.
	(2) After section 4C insert—
	"4D Acquisition by registration: legitimacy
	(1) A person is entitled to be registered as a British citizen if—
	(a) he applies for registration under this section; and
	(b) he satisfies each of the following conditions.
	(2) The first condition is that the person was born before 1st July 2006.
	(3) The second condition is that the person is not already a British citizen.
	(4) The third condition is that the father of the child satisfies any requirements as to proof of paternity prescribed under section 50(9B) of this Act.
	(5) The fourth condition is that the person would have been a British citizen had his father been married to his mother at the time of his birth.""

Baroness Falkner of Margravine: The purpose of the amendment is to allow those born to fathers not married to their mothers to register as British citizens. In the Nationality, Immigration and Asylum Act 2002, the law was changed so that children born to British fathers who were not married to their non-British and not-settled mothers were born British if their fathers could prove paternity. This only assisted those born after 1 July 2006, when the provisions were finally given full effect, under Section 162(5) of the 2002 Act. The person can be registered by discretion, while still a child, under Section 3(1) of the British Nationality Act 1981, but the Home Office does not always agree to register these children, and not everyone who was born out of wedlock to a British father is capable of being registered.
	The fourth condition is designed to cover two situations; first, that of children born in the UK or a qualifying territory after 1 January 1983. If they had been born prior to that date in the UK, that would have sufficed to make them British. It will also cover children born to a British father otherwise than by descent; in other words, someone who can pass on his nationality to his children born overseas, outside the UK or in a qualifying territory. It really fills an anomaly in a period of time for which these children do not have rights because their mothers were not registered. We hope that the Minister will cover it as he has covered other amendments to this Clause. I beg to move.

Lord Brett: My brief indicates that the Government believe that this proposal is unnecessary in practice. Again, however, the noble Baroness undoubtedly has examples of cases that have given rise to concern requiring this amendment to be tabled. As she has rightly suggested, it would seem to be a useful part of the comprehensive discussion that we will have on these issues. I therefore suggest that she withdraw her amendment.

Baroness Falkner of Margravine: On that basis, I beg leave to withdraw the amendment.
	Amendment 99 withdrawn.
	Amendment 100
	 Moved by Lord Avebury
	100: After Clause 41, insert the following new Clause—
	"Acquisition by birth of adoption: British nationals
	(1) The British Nationality Act 1981 (c. 61) is amended as follows.
	(2) In section 1(1), omit the words "on or after the appointed day".
	(3) In section 1(1), after paragraph (b) insert—
	"(c) a British Overseas Citizen,
	(d) a British subject under this Act,
	(e) a British Protected Person,
	(f) a British National (Overseas).""

Lord Avebury: I imagine that this will be another amendment that we can bundle up in the discussion. The first part will assist the small number of children born overseas to parents who were British citizens by descent, and were thus, as my noble friend has explained, unable to transmit their nationality to their children born overseas where those children were born in a qualifying territory in which the parents were not settled. "The qualifying territory" means the British Overseas Territories other than the sovereign base areas of Akrotiri and Dhekelia.
	The amendment would not affect the children born to BDTCs before 2002, because they derive their British citizenship from the British Overseas Territories Act 2002. Nor does it affect whether the child has the citizenship of the overseas territory. It is thus about the situation only of British citizens who live overseas, rather than those who are also British Overseas Territories citizens in their particular territory.
	If that sounds complicated, and if some of the things that my noble friend said sounded complicated, I agree. I had an e-mail this morning from a lady who said that she had three law degrees and, looking at what we said on Monday, could not make head or tail of it. She has asked me to suggest to the Government, and I do so most gladly, that they should produce a wall chart showing each path to citizenship contained in the law. That would make them a great deal easier to follow for members of the public and those who have to advise them, compared to trying to thread their way through the British Nationality Act 1981—particularly as the BNA 1981 does not include the amendments that we are considering in this Committee, although the Minister was kind enough to let us have the Keeling schedule showing how that Act will appear as amended by the Bill. I leave that with the Minister as a helpful suggestion from a member of the public who has been trying to follow our proceedings.
	The second part of the amendment would amend Section 1 of the British Nationality Act 1981 so that the children of British passport holders, other than British citizens born in the UK or a qualifying territory, are British citizens. British nationals other than British citizens have no right of abode by virtue of their British nationality alone. They are in a weaker position than third-country nationals settled in the UK or an overseas territory, and so are their children. The child of a person who is settled in the UK or an overseas territory is born a British citizen. It is a remarkable consequence of this Bill that, because probationary citizens will have limited, not indefinite, leave to remain, the children born to people on probationary citizenship will not be British citizens at birth and will have none of the rights and entitlements of citizenship. Thinking about that should help Members of the Committee to understand the position of British nationals other than British citizens, whose British passports give them no right of abode in any country.
	Taking a quick canter through the international treaties that are relevant to this issue, there is, first, the European Convention on Human Rights, which the UK has signed but not ratified, because of the application of Protocol 4 to British nationals who are not British citizens, including BN(O)s. Article 3 provides that:
	"No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national ... No one shall be deprived of the right to enter the territory of the state of which he is a national".
	Then there is the UN Convention on the Rights of the Child, which says that the child shall have the right to acquire a nationality. As we know, some children are born stateless and many are born without the right to enter the territory of the state to which they are supposed to belong.
	Thirdly, there is the European Convention on Nationality, with its provisions on the transmission of citizenship to children. The UK withdrew its reservation to this convention in 2008 and we invite the Minister to say—perhaps not now but in the course of the discussions that we are looking forward to—what changes in the law, particularly on the transmission of citizenship to children, enabled us to do this. Are British nationals other than British citizens our nationals or not? If they are, do the obligations that we have undertaken in international law have relevance? If they are not, what are they, and when and by whom is that determined? The noble and learned Lord, Lord Goldsmith, said in his review, Citizenship: Our Common Bond, which I have already mentioned:
	"If citizenship should be seen as the package of rights and responsibilities which demonstrate the tie between a person and a country, the present scheme falls short of that ideal".
	I hope that in the course of discussions with the noble Lord, we will approach a little more closely to the ideal. I beg to move.

Lord Brett: Again, I am grateful to the noble Lord for setting out the reasoning behind his proposed new clause. When trying to get my head round this area—on Monday I manifestly demonstrated that I had failed to do that in some ways—I tried to do my own wall chart. I would not recommend my draughtsmanship to anybody, but if that were possible, it would be excellent; it might not be for wider dissemination but it would help at least those of us struggling with discussions over the next few weeks. It fits well for the discussions that are coming and I endorse the route.

Baroness Hanham: I have not been involved in these amendments but I am a little puzzled about the procedure, if they are all now taken away for further discussion. I understand that some of the cases raised by the noble Lord, Lord Avebury, and the noble Baroness, Lady Miller, may require clarification. But most of the issues that have been raised are matters of principle, and they have been raised as amendments to the Bill. After the discussions, what is the procedure for then deciding, first, whether these come within the ambit of the Bill; secondly, whether Parliament is going to agree to the changes—if any—that will be made; and thirdly, how to dispose of the amendments that are now before us. I am always happy to see the Government talk to the Opposition, but I am a little concerned that the procedure now seems to be extremely unclear.

Lord Brett: The purpose behind the proposal for discussions is that in each of the cases where we have amendments to the proposed law, they derive in the main from known cases that could not be dealt with successfully under the law as it stands because the law was deficient or because of lack of discretion, misunderstanding or whatever. I am attempting to resolve those issues. In technical terms the amendments have been and withdrawn, and all can be resubmitted, along with any other amendment, at the next stage, which of course is Report stage. Having had our discussions, I would be happy to ensure that the noble Baroness is aware of how far they have gone and what we have been able to achieve, in order that she may then be able to come back and put forward such amendments as she may feel are necessary, notwithstanding the fact that amendments in the name of the noble Lord and other members of the Liberal Democrat Front Bench have been withdrawn.

Baroness Hanham: I should be grateful for that. It would be helpful to distinguish between cases that need to be clarified and which may have been sitting around for a long time and principles. There are one or two principles here. I should be grateful to have that enlightenment.

Baroness Howe of Idlicote: I emphasise the points that have just been made. I have quite purposefully not entered into discussion on these clauses, because I understand that they are all going to be looked at very sympathetically. I should like to be reassured that if some of these are going to come back because they have not been settled satisfactorily, rather more leeway will be given to the discussion—more like a Committee stage type of discussion—on Report.

Lord Brett: It is not for me, but as I understand procedure, Report stage does not allow for the reopening of debates that have taken place in Committee. I reiterate that it is for any Member of the House to table such other amendments for Report stage as they so wish. The point is that there is a genuine attempt to move to resolve a number of difficulties that the noble Lord and the noble Baroness have instigated and which, as they have said on a number of occasions, in many cases involve only a small number of people who are seen by many to have been badly treated. That is what they want to see investigated and resolved.

Lord Hylton: I am sure that we all appreciate the Government's good will in trying to resolve certain questions affecting a small number of people. I am also sure that the Government know that it is possible to recommit certain clauses in a Bill and deal with them pretty well at the same time as Report stage is taken.

Lord Brett: That is perfectly correct. At this stage, I just want to avoid jumping too far ahead. We have not even commenced the discussions that all sides of the Committee think would be very useful to have.

Lord Avebury: I am most grateful to other noble Lords for those interventions. They highlight the fact that, although we are considering a small number of cases, we have not conceded the proposition that they can all be dealt with on a discretionary basis. From the experience that we have had with Section 27(1) on the Hong Kong issue, where discretion was not exercised in favour of a particular small group, we think that as a result of the discussions that we will have with the Minister we will end up with certain amendments to the statutes that will bring in the small number of persons involved in each case.
	We are not talking about the exercise of an individual ministerial discretion in any of the amendments that we have moved. We are talking about trying to persuade the Government that these are matters that have to be dealt with by primary legislation or by order, although there may be one or two cases—I am not conceding that; I am just speaking off the top of my head—where the exercise of discretion would be adequate. We think that in nearly every case we are going to have to persuade the Government that some modification of the BNA will be necessary to give effect to the proposals that we have made, even though they relate to a very small number of persons. For the time being, I beg leave to withdraw the amendment.
	Amendment 100 withdrawn.
	Amendments 101 to 101B not moved.
	Clause 42 : Children born outside UK etc. to members of the armed forces
	Amendment 102
	 Moved by Lord Thomas of Gresford
	102: Clause 42, page 34, line 28, leave out from beginning to end of line 8 on page 35 and insert—
	"(1) Section 2 of the British Nationality Act 1981 (c. 61) (acquisition by descent) is amended as follows.
	(2) In subsection (1)(c) after "Communities" insert "; or
	(d) is a member of the armed forces.""

Lord Thomas of Gresford: I am sure that we are all having some difficulty in getting our heads around the proposals that the Government are putting forward, but I am also sure that when it comes to the Armed Forces, the Government have good will towards members of the Armed Forces and are anxious that they should be properly treated. I am pleased to see the noble Lord, Lord West, in his place. As I pointed out on Monday night, those eligible to serve in the British Armed Forces are British citizens, British nationals other than British citizens, Commonwealth citizens and Irish citizens. A person who is a member of the Armed Forces should know that children born to him or her will be entitled to British citizenship. Amendment 102 is a very simple amendment to the British Nationality Act.
	Clause 40, which we debated on Monday, was concerned with children born in the United Kingdom to members of the Armed Forces. Clause 42 is concerned with children born outside the United Kingdom or the qualifying countries to members of the Armed Forces. For some reason that I do not understand, a distinction is drawn between them. Clause 42 does not take the same approach as Clause 40 to children born outside the United Kingdom.
	Members of the Armed Forces, who are the people most affected by these provisions, are posted where they are required—and that may not be within one of the qualifying countries. Since they have to go when they are ordered, they have no choice. Families who wish to be together at the time of their child's birth may be posted in some place that does not come within the definition of the United Kingdom or the qualifying countries. Given these circumstances, on what basis have the Government decided to draw a distinction? If service in the Armed Forces of this country, which is a very worthy undertaking, entitles children to become British citizens in one instance, why should they not become so in the other? Why should citizenship depend on where the family has been posted at a particular time? I cannot see the reason for that principle and I await with interest what the Minister will say. I beg to move.

Lord Brabazon of Tara: I should point out that if the amendment is agreed to I cannot call Amendments 103 and 104.

Lord Brett: It was proposed to put all the amendments in this area into the conversation and that is still a way forward, but I should do two things beforehand. First, in discussing the previous amendment, the noble Lord indicated that he would allow no conditions to what he would commit to in discussions of that amendment. The Government are not committing themselves either ahead of that to make changes in the law. However, it does need an understanding of why those conditions were sought so as to allow a more sensible, temperate and—in the eyes of some—more sympathetic decision to be made. It might be useful to read into the record my response to the noble Lord and questions and answers can be taken afterwards in a more general discussion.
	The Government would resist the amendment as it appears in the Marshalled List. The proposed amendment would remove in its entirety the proposed Section 4D. The amendment proposes that British citizenship otherwise than by descent be acquired automatically at birth by any child born outside the UK to a parent serving in the Armed Forces at the time of birth. The proposed amendment would therefore deal with children born to British citizens serving in the Armed Forces. However, this class of persons is already provided for by Section 2(1)(b) of the Act which deals with British citizens serving outside the UK in Crown Service as Crown servants, including those in the Armed Forces. The proposed amendment would therefore in part replicate the effect of existing statutory provisions.
	However, I also understand that the purpose of the amendment may be to enable those born overseas to foreign and Commonwealth service personnel to acquire British citizenship automatically rather than by registration. We have elected to provide that citizenship be acquired by registration under the proposed Section 4D because we believe that it is right to enable foreign and Commonwealth nationals who are not themselves British citizens to determine whether they wish their child to acquire British citizenship where that child is born outside the UK. This will enable those parents to consider, first, for example, whether acquisition of British citizenship would lead to the loss of another citizenship that they feel is more important for their child to acquire. Secondly, even if there is no conflict in regard to dual nationality and the domestic law of another state, it is still possible that the parents may nevertheless not wish their child to acquire British citizenship. As a result, it is right that the parents of those born overseas decide what citizenship their child acquires.
	The second and third amendments in this group would allow a person to register as a British citizen under the proposed Section 4D if born in the relevant circumstances before commencement of the provision—that is, those born outside the UK and qualifying territories where, at the time of the birth, at least one parent was a member of the Armed Forces. Children born in such circumstances are currently able to register as a British citizen at the discretion of the Secretary of State under Section 3(1) of the British Nationality Act 1981 following, in the main, their return to the UK with the family unit on conclusion of an overseas posting. Alternatively, those individuals who return to the UK, do not register as a British citizen while a minor and remain resident in the UK can naturalise as a British citizen under Section 6(1) of the British Nationality Act 1981 when they are an adult.
	It is also right to remember that the proposed Section 4D, which Clause 42 inserts, is based on a desire to remove obstacles to the acquisition of British citizenship for those born overseas to foreign and Commonwealth service personnel on active posting at the time of birth. This is a government commitment made clear in the Command Paper presented to Parliament in 2008, The Nation's Commitment: Cross-Government Support to our Armed Forces, their Families and Veterans. This is principally to ensure that, as has historically been the case, the mother of the child does not need to travel to the UK when heavily pregnant in order to ensure that the child acquires British citizenship automatically at birth as a child born to a parent who is settled for nationality purposes in the UK or qualifying territories. Such a mother will instead be able to give birth to her child overseas and the child can be registered as a British citizen from abroad. This is what our foreign and Commonwealth service personnel want and it will encourage ongoing service in our Armed Forces by removing current obstacles faced by the family unit.
	Persons born outside the UK to foreign and Commonwealth service personnel since commencement of the British Nationality Act 1981 have been able either to register as a British citizen when a minor on their return to the UK or to naturalise as a British citizen as a result of ongoing residence in the UK when an adult. For those who are still children but have not yet been registered, Section 1(3) remains open as an avenue to registration as a British citizen. This means that no one is currently losing out. The proposed Section 4D is designed to facilitate the acquisition of citizenship by those yet to be born overseas in the relevant circumstances. Children born before commencement already have routes to citizenship.
	For those reasons, the Government are confident that there is no strong argument for accepting the amendments. Further, when considering this matter, it is important to be conscious of the fact that the majority of those posted overseas in the UK Armed Forces are single men, the majority being in the Army, and that they travel alone and are without a spouse or civil partner. We estimate that currently fewer than 200 children a year are born to a parent serving overseas at the time of birth. Most of these have in any case been born in the UK and have acquired British citizenship automatically at birth.
	That is the reasoning behind the Government's resistance to these amendments. However, as I said previously, were the amendment to be withdrawn, we think that it would be useful, if the noble Lord wishes, to continue the discussion on this and other matters.

Lord Thomas of Gresford: I am afraid that I shall have to pursue the matter a little further because the Minister speaks at a pace, which makes it very difficult to follow. I want to take a simple situation. Let us imagine that I am a Fijian member of the Armed Forces of this country, playing rugby for a Scottish regiment, as many of them do, and that I am posted to Edinburgh. My wife has a child in Edinburgh and under Clause 40, that "person",
	"shall be a British citizen".
	There is no question of applying to register. The suggestion that there is some conflict with dual nationality and that another country may not allow them to do that does not arise in Clause 40. As that same Fijian soldier, I may be sent to guard the embassy in Australia. I am not on active service but as part of my responsibilities I am sent there. The Government allow my wife to go as well and we have a child. That child does not become a British citizen by reason of membership of the Armed Forces. The child has to apply for registration, and if over the age of 10, has to pass the good character test.
	It is exactly the same situation. The soldier has been sent to serve abroad, so what is the difference? In the five or 10 minutes that the Minister was talking I was hoping that he would elucidate the principle behind that. I cannot find one. I welcome the possibility of future talks and I will read in Hansard what the Minister said and try to understand it, but I still do not know the principle. If we are to reward Commonwealth citizens—if British citizenship is regarded as a reward—for serving in the British Armed Forces by giving citizenship as of right to their children born in this country, why do they not have the same reward if they are posted abroad? It is very simple: what is the difference?

Lord Brett: I apologise for the speed of my delivery. It is partly a cultural inheritance of coming from the north—we speak quicker—partly nervousness on my part, and partly because I have a cold. However, those reasons are no excuse for not making myself clear to the Committee and I apologise for that.
	The noble Lord set out an example and posed a question that I cannot answer with confidence in detail now, but I will of course write to him on the matter. If it is written it can be clearly understood.

Lord Thomas of Gresford: What can I say? I will not take it to the vote but if the principle is not clearly stated on Report and we have not come to an accommodation we will pursue the matter. For the moment I beg leave to withdraw the amendment.
	Amendment 102 withdrawn.
	Amendments 103 and 104 not moved.
	Clause 42 agreed.
	Clause 43: Good character requirement
	Amendment 105
	 Moved by Lord Avebury
	105: Clause 43, page 35, line 29, leave out subsection (2)

Lord Avebury: The amendment would remove Hong Kong war wives and widows from the list of those who must satisfy a good character requirement to register as British. The registration route to British citizenship is designed for certain minors of a British parent born outside the UK, people already holding a lesser form of British nationality and others with family connections to the UK whose circumstances are treated as justifying a less rigorous path to citizenship than naturalisation. In the BNA 1981 the people in these groups are also classified according to whether their members were to be registered by entitlement solely on production of evidence that the prescribed criteria were satisfied or by discretion, with a good character requirement added to the test by Section 58 of the IAN Act 2006. It was only in 2006 that we began to insist on the good character test for any of these groups.
	Initially the Government applied the test to everybody who was granted citizenship by registration under the Immigration, Asylum and Nationality Bill of 2006 but we persuaded them to remove some groups from the list, such as the de facto stateless, British overseas citizens with no other citizenship and minors under the age of 10. However, we know from Monday's debate that some of the first of these categories are still out in the cold. Unfortunately, the Government still left the Hong Kong war wives and widows in the list, although when the then Home Secretary, David Blunkett, introduced registration for this group he said:
	"We are talking here about righting an historic wrong".—[Official Report, Commons, 5/11/02; col. 147.]
	We considered the groups that were entitled to register as of right in an amendment to the 2007 Bill, and in her reply, the then Minister, the noble Baroness, Lady Ashton of Upholland, told us that,
	"when we consider groups such as the wives and widows of those who fought in the defence of Hong Kong, we believe that we have brought them all into the system in one way or another".—[Official Report, 6/2/07; col. 621.]
	They were women who had received a UK settlement letter from the Secretary of State confirming that, in recognition of their husband's or late husband's service in defence of Hong Kong during the Second World War, they could enter the United Kingdom for settlement at any time. In an Act sponsored by the noble Lord, Lord Willoughby de Broke, in 1996, these wives and widows had been given the right to register as British citizens. There was no requirement then, or for the next 10 years, that they would have to pass a character test. Today, the UKBA says that, at most, there are some 53 of them still alive. They were not brought into the system, nor was any explanation given by the Minister about why these very elderly ladies should be subjected to the indignity of the test. I hope noble Lords will agree to take them off the list.

Baroness Hamwee: I support this amendment. This seems to be the most curious inclusion in the BNA of a very small number of people. However, we are not talking about individual decisions, but about the principle. The principle here is wrong, and I am therefore glad to support the noble Lord.

Lord Thomas of Gresford: I strongly support my noble friend in this amendment. It seems disgraceful that this Government should ever have brought this provision forward.
	I shall tell noble Lords a little bit about Jack Edwards. He came from Cardiff and served as a sergeant in the Army during the Second World War. He was captured by the Japanese in Singapore and was held in Japanese camps for a long time. When he was released, he made it his business to seek out war criminals. It was as a result of his efforts that he discovered the only surviving copy of a Japanese order to massacre all prisoners of war if the allies landed on the Japanese home islands. Jack Edwards then moved to Hong Kong, where he was chairman of the British Legion and much involved in tireless efforts to obtain monthly pension awards from the British Government for ethnic Chinese veterans and their widows. In 1996, he fought for and won the granting of British citizenship to the wives and widows of those veterans. We are told that there are about 53 of them left. I met Jack Edwards; indeed, he was patron of the Hong Kong Welsh Male Voice Choir. I declare an interest as I followed him as its patron and have sung with it in the Sydney Opera House and the Royal Albert Hall. I therefore have a personal interest in Jack Edwards, who unhappily died in 2006. He was married to a delightful Chinese lady—Polly—who I met at the Armistice service the year before last.
	Why should these 53 widows be asked to pass a good character test? They must be in their 80s and 90s, and there are probably far fewer than 53 of them. I regard it as an insult that a clause of this sort should be put into the Bill, presumably as a result of a desire for bureaucratic tidying up of the legislation relating to the good character test. I am sure the Government will, on reflection, remove it from the Bill.

Lord Brett: I shall keep my response short, if not slow. A powerful case has been made. I have the brief. The sensible thing is for the Government to reconsider the issue, and I give that commitment.

Lord Avebury: I am most grateful to the Minister and have pleasure in withdrawing the amendment.
	Amendment 105 withdrawn.
	Clause 43 agreed.
	Amendment 105A not moved.
	Clause 44: Meaning of references to being in breach of immigration laws
	Amendments 106 and 107
	 Moved by Lord West of Spithead
	106: Clause 44, page 37, line 10, at end insert—
	"(ca) does not have a qualifying CTA entitlement;"
	107: Clause 44, page 37, line 21, at end insert—
	"( ) For the purposes of subsection (4)(ca), a person has a qualifying CTA entitlement if the person—
	(a) is a citizen of the Republic of Ireland,
	(b) last arrived in the United Kingdom on a local journey (within the meaning of the Immigration Act 1971) from the Republic of Ireland, and
	(c) on that arrival, was a citizen of the Republic of Ireland and was entitled to enter without leave by virtue of section 1(3) of the Immigration Act 1971 (entry from the common travel area)."
	Amendments 106 and 107 agreed.
	Clause 44, as amended, agreed.
	Clause 45: Other interpretation etc.
	Amendment 108
	 Moved by Lord West of Spithead
	108: Clause 45, page 39, line 2, at end insert—
	"( ) A person has a qualifying CTA entitlement if the person—
	(a) is a citizen of the Republic of Ireland,
	(b) last arrived in the United Kingdom on a local journey (within the meaning of the Immigration Act 1971) from the Republic of Ireland, and
	(c) on that arrival, was a citizen of the Republic of Ireland and was entitled to enter without leave by virtue of section 1(3) of the Immigration Act 1971 (entry from the common travel area)."
	Amendment 108 agreed.
	Clause 45, as amended, agreed.
	Clause 46 : Common Travel Area
	Amendment 108ZA
	 Moved by Lord Shutt of Greetland
	108ZA: Clause 46, page 39, line 20, at end insert—
	"( ) In section 1 of the Immigration Act 1971 (c. 77) (general principles: the common travel area) after subsection (2) insert—
	"(2A) Arrivals by land from the Republic of Ireland to the United Kingdom shall not be subject to immigration control under this Act.""

Lord Shutt of Greetland: I am making an unexpected guest appearance in Committee on the Bill. I ask noble Lords to bear with me, as I was given the brief at the last minute. Both my colleagues on the Northern Ireland team were hoping to speak to the amendment but cannot do so.
	The common travel area has been very much part of my life. In 1946, I was taken as a child to the Isle of Man. I have been there in most years since, and 20 years ago my wife and I bought a cottage in the Republic of Ireland, so I am very much aware of the common travel area as it affects these isles.
	In effect, the clause abolishes the common travel area by removing the provision that means that persons departing from or arriving in the UK from within the common travel area are not subject to immigration controls. Since its advent, the common travel area has been suspended only during World War II. Even at the height of the Troubles in Northern Ireland in the 1970s and 1980s, the common travel area was maintained. The rationale given by the Government for these changes is set out in the impact assessment of the recent consultation on strengthening the common travel area. However, little empirical evidence is provided to support or explain the need for the changes, which seem to be unconnected to the reality of the situation on the border between the UK and the Republic of Ireland.
	There is also an expressed intention to increase the number of intelligence-led ad hoc immigration checks on the land border. In practical terms, Clause 46 means that immigration officials can challenge an individual whom they suspect of not being in compliance with immigration rules to prove their nationality. This will apply not only to those travelling by sea and air but to those stopped by an ad hoc immigration check near the land border. As this power can be applied to any individual, including British and Irish nationals, it will mean that those living in the border area could be subject to frequent immigration checks on any journey near the border and could therefore feel compelled to carry identity with them on all journeys.
	Given our concerns about the basis for the intelligence-led operations, we are concerned that this pressure may be felt most strongly among the ethnic communities living on or near the border and by individuals from these communities contemplating travel between Northern Ireland and the Republic of Ireland. This amendment aims to prohibit explicitly the practice of immigration checks on land crossings of the border between the UK and the Republic of Ireland.
	We are extremely concerned at references to mobile checks being made on a risk-led basis. The CTA consultation proposed the introduction of,
	"ad hoc immigration checks on vehicles ... to target non-CTA nationals".
	The Home Office has subsequently stated that such checks would be intelligence-led on persons both arriving in and leaving Northern Ireland. The Government have not set out what criteria will be used as the basis for these operations or set out transparent monitoring to ensure that they are not relying on racial profiling.
	While the Government have stated that no fixed passport or identity document will be required for British and Irish citizens to cross the land border, clearly those stopped under enforcement operations will be expected to satisfy UK Border Agency officers that they are British or Irish citizens by producing passports, national ID cards or otherwise, as will non-CTA nationals. The clear question, in the context of ethnic diversity, is: will those policing the land border be able to tell who is a British or Irish citizen and who is not? Who, on indicating that they are not carrying particular travel documents, will be allowed to proceed and who will be subject to further examination and even detention until identity is verified?
	Experience of these actions, in the form of Operation Gull, has been that immigration officers have carried out investigations on a discriminatory basis. On a number of occasions, the High Court has criticised the practices of immigration officers in cases involving Operation Gull which have come before them. The speed and secrecy under which Operation Gull is carried out results in individuals being unable to access independent legal advice that would be able to determine whether they have been detained lawfully. One of the chief concerns is that individuals could be questioned under Operation Gull on grounds of ethnicity or nationality, irrespective of their intentions.
	The proposed powers in the CTA consultation will only increase the likelihood of Operation Gull-type operations. It is essential that the circumstances in which such checks may be made are carefully defined, to avoid establishing a broad power of internal immigration control. We are concerned that these measures could have a disproportionate impact on ethnic minority persons crossing or even just living and working near the land border. The potential outcomes of these circumstances would mean that an ethnic minority person would constantly have to carry identity papers or face frequent questioning regarding their status.
	A number of cases came before the Northern Ireland High Court, the most recent of which was an application for judicial review by Jamiu Olanreaju Omikunle, a Nigerian student who had obtained a proper student visa and was unlawfully detained by immigration officers at Belfast International Airport on a local journey. The court held that he was detained unlawfully. He had recently been awarded a significant amount of money in compensation for his unlawful detention and the appalling treatment to which he was subjected while in detention.
	Approving this provision will endorse such discriminatory policies where ethnic and racial profiling is at the core of their rationale. The significant number of people being adversely affected by Operation Gull prompted the Northern Ireland Human Rights Commission to conduct an investigation into the implementation and conduct of this operation. We understand that the Human Rights Commission is soon to report its findings in relation to its investigation. The Government's attempt to introduce this provision at this stage is to neutralise its findings.
	We would also like a reassurance from the Government that they do not intend to make checks on those travelling between Northern Ireland and the rest of the United Kingdom. The measures proposed in the Bill mean that UK citizens in Northern Ireland will be subject to travel controls that are not imposed on UK citizens travelling from one region of Britain to another, as journeys across the border from Northern Ireland into the Republic are as common as journeys from England into either Scotland or Wales for those living along the Welsh or Scottish borders. It would be completely unacceptable for the Government to place controls on British citizens travelling from Belfast to the rest of the UK.
	Moreover, the powers of examination detailed in Schedule 2 to the Immigration Act 1971 refer to and are understood as usually applying to aircraft and ships, and air and sea ports respectively. The Government, through regulation, can determine otherwise. However, in relation to the CTA, they have not indicated an intention to do so and such a move would contradict the stated objective of not introducing fixed control requirements on the land border. This contradiction would also emerge if the Government pursued the extension of examination powers to international railway stations and trains, and even in-county, without exempting CTA routes.
	Presently in Northern Ireland, international railway stations would include Newry, Portadown, Lurgan, Lisburn and Belfast Central, all of which are served by the Enterprise express between Belfast and Dublin, which crosses the land border, as well as being used for journeys within Northern Ireland. If the Government's intention to effectively extend the definition of a port to international rail did not exempt the CTA, this could introduce passport control, control areas and e-Borders to these stations. None of this is referenced as planned in the present CTA reforms. We would like the Government to assure the House that they are not planning to operate such checks. The Home Office has given clear indications that there will be no passport control on the land border for CTA nationals, despite stating its intention for CTA passport control to be introduced only on air and sea routes. That is not explicit in the Bill and is what we hope to achieve with this amendment. I beg to move.

Viscount Bridgeman: I support the amendment in the name of the noble Lord, Lord Shutt. The Government's utterances on identity checks at the border between Northern Ireland and the Republic have been unclear. In truth, that reflects either muddled thinking by the Government or a reluctance to come clean about what they are planning. The Government have said that there will be no question of establishing full-scale checks on the border, which reflects the practical and political impossibility of doing so. Instead, we will see ad-hoc checks, which we have been assured will be intelligence-led and carefully targeted, a point made by the noble Lord, Lord Shutt.
	I do not consider that very reassuring at all. How will this work in practice? If people travelling across the border are to be stopped at random, how will they prove that they are British or Irish citizens, or otherwise have a right to be in the country? If the checks are entirely ad hoc, they will not know when these checks might take place. In other words, the Government are requiring British citizens to carry identity documents at all times in case they stray over the border to go shopping, buy petrol or countless other legitimate everyday purposes in order to prove who they are. That is a very unsatisfactory way to sneak in ID checks on British citizens by their own Government. What will happen, for instance, to those people who are stopped but have not remembered to put their identity papers in the glove box of their car or their pocket? Will they be detained on the spot, followed home, made to report to a police station later or simply waved on their way?
	If we swallow the argument that these stops will be carefully targeted, we must ask how that will be done. I have also seen the briefing from the Northern Ireland Human Rights Commission, referred to by the noble Lord, Lord Shutt, and I agree with the point that it makes. There is a great danger that the targeted checks will focus on people who look a bit different or foreign. Is that compatible with the noble Lord's statement on the front of this Bill that this is,
	"compatible with the Convention rights"?
	If the security and intelligence services have a genuine suspicion that someone is up to no good, it has ample powers at its disposal already for dealing with them. The Government have utterly failed to explain this measure, which will inconvenience thousands of people going about their lawful business and will not make the borders any more secure.
	That raises another point. Why are the Government proposing border checks into Northern Ireland on an ad hoc basis, but making those into Great Britain mandatory? What, exactly, is the threat posed to the people of the British mainland from which they must be protected, and why are British citizens in Northern Ireland to be deemed less at risk from that threat? Why would Northern Ireland need only ad hoc border protection if Great Britain needs stronger protection? If, as my noble friend Lord Glentoran suggested at Second Reading, this Bill is to protect the Great Britain border and not the United Kingdom border, why will the Government not at least be open about it?
	Bearing that in mind, will the Minister please spell out the future position of British citizens seeking to travel from Northern Ireland to Great Britain on an entirely domestic journey? Will they be subject to immigration controls to compensate for the ad hoc or non-existent controls on the land border? These government proposals are likely to be so ineffective in their stated aim that either they have not been thought through or are paving the way for an entirely different and more far-reaching measure. I will be most interested to hear the Minister defend this clause, but at this stage I support the amendment from the noble Lord, Lord Shutt.

Lord Teverson: I have not been much involved in this Bill, but I take a great interest in freedom of movement, within Europe and the common travel area, and this provision quite astounded me. Many British citizens take the common travel area for granted, in some ways—when they go to Dublin, perhaps, or when British citizens within Northern Ireland travel within the island of Ireland—but it does not generally receive a great profile. The common travel area is, however, extremely precious. It has a long historic base and reflects a close relationship between the Republic of Ireland and the United Kingdom.
	The group of amendments following this one might go more profoundly into Clause 46, but when starting to read about this I took out the Immigration Act 1971 from the Printed Paper Office, to try and understand what this clause does in relation to it. I found great difficulty in following it through, but although I could not understand this entirely from the legislation, I noted that the Explanatory Notes produced for the Bill say, in referring to Clause 46(1), that:
	"This amendment will enable the routine control of all persons arriving in or departing from the UK via the CTA by aircraft or ship".
	Perhaps this amendment is not necessary, because if the notes are true it is somehow suggested that the new provision does not include travel over land, but only "by aircraft or ship". That seems entirely illogical if it is true, so I will be interested in the Minister's explanation of the Explanatory Notes.
	Clearly, it makes no sense at all to control access to the United Kingdom by aircraft or ship if we do not control it by the land border as well. Anybody wanting to enter Great Britain who we would not want here but who is already in, say, the Republic of Ireland—although I understand that this would also include the Channel Islands and the Isle of Man—will clearly just travel by land to Northern Ireland, and thereafter by air or ship on an intra-United Kingdom journey. I do not understand this to be giving any extra security or control to us as British citizens, let alone to those of other jurisdictions within the CTA.
	I will be interested to understand from the Minister exactly what benefit this provision has, at the expense of starting to erode strongly something that we should view as precious: the right of all citizens within the CTA to travel freely and without hindrance. As my noble friend Lord Shutt said, that was never seen as something that should be restricted during the Troubles, and I see no reason why it should be the case now.

Lord West of Spithead: I should make it clear at the outset that there is absolutely no intention to abolish the CTA. Indeed, we do not believe that anything in the Bill goes anywhere near to doing that. The CTA has been important and valuable to us in the past and will be in the future.
	As the noble Lord, Lord Teverson, mentioned, we are coming on to a series of other amendments on this clause, so I might not go into as much detail on this amendment as on them. There is also a clause stand part question as well.
	The Bill looks at the common travel area because we have found that a large number of people are slipping through the hoop, with some very real risks and problems. Therefore, when I was asked after the attacks on Tiger Tiger and Glasgow Airport in 2007 to look at a number of issues, I flagged up elements of border control. We were able to draw on work that had gone on in dealing with loopholes in the arrangements with the Republic of Ireland whereby some unpleasant and nasty people had been moving backwards and forwards, and problems relating to crime, trafficking, immigration and terrorism had arisen. That is why we have come up with various amendments to the 1971 Act.
	Amendment 108ZA would restrict the power to control persons travelling across the land border, which would undermine the purpose of the CTA reforms—as I said, we have gone to great length to discuss that with the Republic of Ireland—and prevent the UK Border Agency carrying out effective controls on this route. That would prevent important improvements in our ability and flexibility to combat illegal immigration, terrorism and wider crime.
	As has been stated by noble Lords, political and practical considerations—we all know this—mean that fixed controls on the land border are not a viable option. It is clear that they are impractical. I have been on patrol there enough times. It is quite easy to get lost and end up drinking in a pub in the Republic of Ireland rather than Northern Ireland because it is such a difficult border. We have made it clear that we will not introduce routine border controls on the land border between the Republic of Ireland and Northern Ireland. We have also made it clear that we will not require persons to carry a passport or national identity document on this route—I shall come back to that shortly—but we may want to check that a person is entitled to enter the United Kingdom without leave where we have intelligence that they might be entering unlawfully. We will not collect e-Borders data on those who cross the land border, although we will do so for those who travel on aircraft or ships, as e-Borders will spread to all aspects of ship and aircraft travel. We have made it clear that Clause 46 is only part of a process of reform of the CTA and that we will consider further the approach to intelligence-led, risk-based operations to tackle illegal movement over the land border as part of the wider simplification of immigration law. However, we are committed to retaining the CTA. It is an incremental process. It is the first step in making us safer and resolving some of the loopholes.
	I was asked by the noble Lord, Lord Shutt, and the noble Viscount, Lord Bridgeman, about the intelligence operations. The controls will not be fixed. We shall not ask every passenger arriving to present their passport to an immigration officer. We will target those who have no entitlement to enter the UK who we think pose a threat. We will use information obtained on the air-sea routes between the Republic of Ireland and the UK through our e-Borders system and other available intelligence.
	The noble Lord, Lord Shutt, asked about ethnic-minority communities, which are clearly an issue. Passengers are selected very much on the basis of direct intelligence and risk, drawn from a number of sources—to which I shall come. No passengers will be selected on the basis of race, and we are developing operating procedures, intelligence audit trails and ethnicity impact assessments to ensure no negative impact. We do not employ racial profiling. Under the land border operation on the quieter roads, we often stop a whole number of vehicles. That is not possible on the main Dublin-Belfast road, so we target the odd bus, minibus or taxi, because our experience has shown that those are much more likely to be a threat.
	The noble Lord, Lord Shutt, mentioned Operation Gull, which has highlighted to us the huge number of problems and difficult cases that we have. In the operation, we asked passengers for identification. Ninety per cent carry passports, even though they do not need to. We asked the remaining 10 per cent questions about their nationality and their UK immigration status. We verified that by checks with CID, WICU, CRS, Irish records, and fingerprint checks on the QuickCheck, re-interviewing the people concerned as appropriate when there were discrepancies. We found that a skilled immigration officer can weigh up a person's nationality and status very quickly through a mixture of good interviewing, IT and mobile databases, and a bit of common sense—which is sadly lacking, very often—both on the border and in Operation Gull. The Irish, of course, do exactly the same in reverse when they are checking persons entering Ireland who have no passport, so it is not an unusual thing to be done.
	It is worth mentioning that we have included refugee travel documents, because we are aware that there might be a number of Tanzanian refugees living along some of the border areas. We have done that to ensure that that is covered.
	The noble Viscount, Lord Bridgeman, asked about checks made on those travelling by air and sea from Northern Ireland to Great Britain. This is not covered in the CTA reforms, as it is a domestic journey, like a journey from, say, London to Liverpool. Persons are, therefore, not subject to immigration control. Section 14 of the Police and Justice Act 2006, to which the noble Lord rightly referred as enabling us to do certain things, introduced a new power that would allow the police to capture passenger, crew and service information on air and sea journeys. That is exactly the same sort of data that we are getting for our e-Borders. We will launch a separate consultation on domestic travel requirements in due course to cover that.
	On the travel documents needed to travel between the Republic of Ireland and the UK by air and sea, we will require all persons, including those who are British and Irish, to prove their identity and nationality with a passport or national identity card. Interestingly, I flew into Dublin about 10 days ago to have some talks with people and for other reasons, and I had to produce a passport on that occasion. That seemed to go against the grain of what has been said here—but it is hardly surprising, when there are so many nasty and unpleasant people around, that one sometimes has to prove one's identity.
	On the land border, we will not introduce fixed or routine controls, or a document requirement, as a matter of policy. The noble Viscount, Lord Bridgeman, asked on that specific point.
	What are we doing to secure Northern Ireland? All passengers travelling internationally to and from Northern Ireland will be subject to the same requirements to provide data as the rest of the United Kingdom. That means that on air and sea routes between the Republic of Ireland and Northern Ireland, they have to carry a passport and identity card. We will introduce phased intelligence-led immigration controls on this route, in the same way as we do on other routes, tying in with e-Borders. Practical and political considerations mean that routine immigration controls and/or the collection of e-Borders data is not a viable option.
	I hope that that answers the bulk of the questions that were asked. We are committed to retaining the CTA, and I hope that on that basis the noble Lord will agree that the amendment is unnecessary and will feel able to withdraw it.

Lord Shutt of Greetland: I thank the Minister for his response. I was slightly worried about the word "incremental". As a Yorkshireman I thought, good heavens, is Lancashire next? I worry about that word "incremental" in all forms of legislation. It is also slightly worrying that the noble Lord, Lord West, in going to Dublin, was challenged. If those very clever people, in looking for those who might be up to ill will, spotted the Minister, it seems very strange indeed. I always thought that the whole business of passports and aeroplanes was more to do with the proprietors of the airlines, such as Ryanair. They want a simple life so they just say, "Bring a passport—bus passes won't do". As the Minister said, it goes against the grain, as so much of this does. However, for the moment I withdraw the amendment, and colleagues and I shall look carefully at his response to consider matters for the next stage.
	Amendment 108ZA withdrawn.
	Amendment 108A
	 Moved by Baroness Hanham
	108A: Clause 46, page 39, line 23, after "in" insert "or departs from"

Baroness Hanham: I apologise again because my noble friend Lord Glentoran is unable to be here and my noble friend Viscount Bridgeman has to leave for a short time. I move Amendment 108A and speak to Amendments 108B, 108BA, 108C, 108D and Clause 46 stand part, all of which belong together. I will speak to Clause 46 stand part with other noble Lords because, unless the Government can persuade us of its merits, we see no justification for Clause 46 standing part of the Bill. There are many reasons for this. It is partly because of the very high cost, with benefits unknown but probably negligible; the practicality of implementation; the lack of consultation; and the Government's confused thinking in this area, which does not seem to warrant the endorsement of your Lordships' House or inclusion in the Bill.
	The amendments that we have tabled to this clause would have, I hope, the effect of reversing the Government's perceived proposals to abolish the common travel area, although the Minister says that this is not the Government's intention. The Official Opposition are in favour of retaining and strengthening a travel arrangement that has served the people of the British Isles very well for almost a century. The clause would end passport-free travel between the United Kingdom and the Republic of Ireland, the United Kingdom and the Isle of Man, and the United Kingdom and the Channel Islands. There was some discussion of this on the previous amendment.
	I turn first to the Isle of Man and the Channel Islands. These three self-governing dependencies are referred to as the Islands. They are sometimes referred to as the British Islands for the very good reason that they are dependencies of the Crown and are inhabited, for the most part, by British nationals. As my noble friend Lord Glentoran asked at Second Reading, in what possible way will putting up a barrier between the United Kingdom and these islands help to protect our borders? It really is not enough for the Government to give an assurance that any checks will be on an ad hoc basis, as indeed the Minister just has again. If the power is there, it is there to be used.
	We have seen correspondence from the Isle of Man Government and the States of Jersey that makes clear their opposition to this clause. There is a long-established protocol that the Islands will be consulted on changes to UK immigration laws. To my knowledge, they have always adapted corresponding provisions. Perhaps the Minister will be kind enough to tell the Committee why the Government did not bother to consult the Islands about the changes proposed in this Bill. There are constitutional issues here, which the Government appear to have failed to address. The Bill makes no distinction whatever between the constitutional relationship between the Islands and the relationship with the Republic of Ireland, which is, of course, entirely different. Was this was just a simple difficulty in the drafting, or a failure by the Government to think through this proposal?
	The main thrust of this clause is, I suspect, aimed at the border between the United Kingdom and the Republic of Ireland. We would not be able to guess at the reasons, although the Minister has outlined some of those in dealing with the previous amendment. What will the Government gain from intervening in the common travel area, which has survived the Second World War and the Northern Ireland Troubles? The CTA is an internal immigration arrangement and nothing more. By messing around with it the Government will not magically shut down the flow of illegal goods or change the face of illegal immigration to the UK. They will simply hinder the free travel of British and Irish citizens.
	The impact assessment produced by the Government explains in Section 2.6:
	"Notwithstanding the principle of free travel within the CTA, it is not lawful for a person who is not a British Citizen to enter the UK (including the Crown dependencies) where their presence was unlawful in another part of the CTA, unless they are given leave to enter. The practical effect of this is that if someone with valid leave in the UK or Islands travels to another part of the CTA, and their leave subsequently expires, and that person then returns to the United Kingdom or Islands without obtaining further leave, that person becomes an illegal entrant. This enables enforcement action to be taken when appropriate and reduces the risk of abuse within the CTA".
	In other words, the lack of an internal border has no magic effect on the rights and entitlements of those under immigration control. The most dramatic effect of the reimposition of controls will be on those not subject to immigration control, and the cost of that can be seen both in the Government's impact statement and in the correspondence that I have received along with other noble Lords.
	The cost of implementation, according to the impact statement, could be as much as £75 million and that will mainly fall on the tourism industry. Is it clever in any circumstances, particularly in the current economic climate, to affect the tourism industry in that island? Thousands of people will presumably find that they need a passport to visit friends, family and colleagues where before they did not. Have the Government considered the knock-on costs on hauliers, ports and the countless businesses that rely on them?
	Again, the impact assessment rather damningly cannot put any figure at all on the benefits to be accrued under this clause. That speaks for itself. Any claims that this clause will improve the United Kingdom's security sounds rather unlikely given that this measure was not deemed necessary even in the security crisis of the 1970s and 1980s. If the Government are serious about wishing to protect our borders, our citizens' way of life and our good relations with our only land neighbour, they would engage constructively with the Republic of Ireland and with the Islands to construct a secure e-Border system that would encompass the whole of the British Isles and allow free travel therein without unwarranted and costly intrusion from the state. We do not believe that this clause is justified and we believe that its removal would make this a better Bill. I beg to move.

Lord Hylton: It must be clear to the Government by now that there is widespread concern about Clause 46 and the details of it. However, I should like to mention my experience of the last time that I flew to Belfast from London in November last year. I was asked to produce photo identity. Was this under some power or legislative authority or was it just overzealousness on the part of the airline?
	To ensure that Northern Ireland is not being discriminated against, what is the position—last year and this year—with regard to flights or trains to and from Scotland? Is photo identity required for such journeys?

Lord Shutt of Greetland: I will speak to the two amendments in this group in the name of my noble friend Lord Smith. Amendment 108CA deals with visas. Given the benefits that the common travel area has brought to the UK and the Republic of Ireland, we would be in favour of legislation that formalised the increase of transparency in the common travel area. For that reason, we support moves to introduce a common visa system or a system of mutual recognition of visas between common travel area members. For that to be effective and just, it should apply to those in the common travel area on long-term visas and be easily affordable for those applying.
	Such a system should include not only short-term visas but the right to rely on a residence permit issued in one state in order to travel to the other. That would be of use to many including those on long-term study visas or who work within the border regions. Furthermore, if a system of mutually recognised visas or a common visa were in place, there would be no need for the leave to be endorsed.
	The Republic is currently working on its own e-Borders programme. In the light of this, we feel that it would be more appropriate for the Government to work closely with the Irish Government effectively to draw a line around our two islands and allow the free flow of movement between them. To that end, will the checks be relaxed if a complementary system of e-Borders and visa checks is developed between Ireland and the UK?
	Amendment 108CB concerns various forms of identity. Clause 46 will allow immigration officials to challenge an individual whom they suspect of not being in compliance with immigration rules to prove their nationality. This will apply not only to those travelling by sea and air, but to those stopped by an ad hoc immigration check near the land border. This power can be applied to any individual, including British and Irish nationals. Clearly, there will be a considerable socio-economic impact on CTA nationals who travel between the UK and Ireland and who do not have passports or identity cards, because they will now have to purchase them.
	A friend of mine recently decided to leave home and get married. He was of mature years, but because he lived at home, he did not have gas bills in his name. He has never driven a car and he has never been abroad. He had great difficulty in getting a mortgage. The whole business of identity is important. One can see how this can be replicated, with people having to understand their identity and prove it.
	Communities on the border will be affected, especially those near sea crossings and where tourism is a cross-border pursuit by virtue of the proximity between the north and south of Ireland. The lakes of Fermanagh straddle the two jurisdictions and are major tourism destinations both in the Republic and Northern Ireland. It would be severely inconvenient for people there to have to carry identification. There could be a particularly significant impact on ethnic minority communities in these locales. The impact of these measures will be disproportionately felt in Northern Ireland. It is our belief that they will impact negatively on levels of trade and tourism.
	I turn now to the clause standing part. The UK Border Agency's figures suggest that implementing these measures would lead to an economic cost from loss of tourism revenues of up to £12 million in the first year. However, it is not clear where the figures come from, or to whom they apply. Is the Minister able to elaborate? Does this cost apply to tourism in the UK, Northern Ireland, England, Scotland, Wales, the Isle of Man or the Channel Islands? Have the Government had any discussions with the Irish Government about the potential impact on tourism? The tourism industry is one of the most important sectors of the Northern Ireland economy, and to introduce a measure that could damage it in current economic circumstances is quite irresponsible. One effect of the downturn in the economy is that people may holiday at home or in the common travel area, and not go to more exotic places. This measure would put a dampener on that.
	I will deal with one other area. Reference has been made to the Isle of Man. As I indicated, I have had a love affair with the Isle of Man since 1946. The Isle of Man received the draft Bill on 18 December, with the First Reading due on 14 January. It seems that there was very little notice. I do not understand that, because under the Belfast agreement there was to be something called the Council of the Isles. The Channel Islands, the Isle of Man, the Republic of Ireland, Northern Ireland, Scotland, Wales and England would all be represented in the Council of the Isles. Has this subject been taken to the Council of the Isles? I cannot think of anything more suitable for a discussion there than this. If it has not been discussed by the council, the Government should frankly withdraw it and have proper discussions, and then consider these matters.

Lord Teverson: I admit that I favour the proposition to remove the clause altogether, although I agree with my noble friend's suggestion of a common visa policy. In a broader context, the Bill clearly says that the UK Government look upon the Irish Government as incapable of properly managing their own borders. The common travel area should revolve around both those jurisdictions being able to sensibly and effectively keep out people who are not supposed to be there. Instead, we seem to have an attitude of, "Well, that's not going to work properly. We don't trust that system and must therefore bring in something else". But that something else clearly cannot work effectively; it is incapable of doing so.
	I agree entirely with a common visa system between those different jurisdictions in the common travel area. But let us be plain about it. Even though I am sceptical about how effective we can make all our borders, if we feel that the Republic of Ireland cannot come up to what we require for e-Borders, perhaps we should say so. However, this is not an answer to that.
	Without destroying my own argument, my solution would be for both Ireland and the United Kingdom to join the Schengen acquis. That would be far more effective. Although a government Minister has recently said that that is not on the agenda at the moment—I was interested to hear "at the moment"—I understand that that will by no means be a practical solution within the timescale of the Bill; it is not currently a politically feasible solution. However, I see this as throwing something valuable away and replacing it with something that just cannot work.

Lord West of Spithead: I should first make it clear that, in speaking to this group of amendments, I do not regard the decision whether Clause 46 should stand part of the Bill to be consequential on any decision on Amendments 108A, 108B, 108C, 108CA, 108CB or 108CD. I am sure, however, that this has been a helpful opportunity to have a wide ranging debate on the issue raised by Clause 46.
	I begin by outlining why we are making these changes. We do not go and make changes for no reason, just to rock things up for everyone and be a bloody nuisance. We do them for reasons. We have made clear the value that we attach to the political, economic and social benefits of the common travel area. We are committed to maintaining the common travel area, and preserving those benefits. However we know that the current CTA arrangements are being abused. So do the Irish, because we have had long talks with them. So do the people in Northern Ireland, because we have talked with the Administration there as well.
	Part of the reason that I said that we need to do something when I looked at this in 2007 is that we have become more aware that serious organised criminals are using the CTA to facilitate their criminal activity, illegal migration and trafficking. We were aware, from the clear evidence of Operation Gull, of immigration abuse between the Republic of Ireland and the United Kingdom. The sorts of numbers that we are talking about are just under 4,000 immigration offenders. This is possibly just the tip of an iceberg.
	There is also clear evidence of abuse of both the United Kingdom's and Ireland's asylum system, where persons who have lodged a claim for asylum in one country then travel to the other and make a further claim.

Lord Avebury: Surely the Eurodac computer system would prevent that. Everybody has to have their fingerprints recorded in the first country of asylum. When they go to the second country and their fingerprints are compared with the Eurodac database, it is found that they have already applied in another country. It cannot happen.

Lord West of Spithead: I am afraid that that does not stop it from happening. As I say, we have found that there are cases of this, which is why we have discussed it with the Irish. The noble Lord looks puzzled by that, so I will get back to him in writing on that point. He would be amazed how people get around the little systems in place. We are clear that there is abuse of the system.
	I will come to costs in a little more detail later. I am not sure how accurate those costs are, as the figure I had quoted was about £7 million for tourism costs. The noble Baroness and a number of others raised that. The key thing is that we are doing these things because a lot of rules are being broken and a lot of dangerous people are involved in it, which causes a lot of harm to innocent people and puts us at risk. The noble Baroness, Lady Hanham, mentioned that in the 1970s and 1980s, when some terrible things were going on in relation to Northern Ireland and the Troubles, there were an awful lot of other provisions in place at that stage. I was involved in some of those, and they helped us a little more. A lot of those things have been dismantled, for various reasons.
	Amendment 108BA would remove the islands—that is, the Crown dependencies—from Clause 46. That would mean that a person coming from the islands would, unlike now, require leave to enter. This would treat the Crown dependencies differently from the Republic of Ireland; they would be treated less favourably. I think the intention is to ask why the islands are subject to Clause 46, and that is the point I will address.
	We accept that there is not the same need for heightened supervision of routes from the Crown dependencies to the UK as there is on routes from the Republic of Ireland. We have no intention to introduce routine controls on routes from the Crown dependencies, but we want to continue to treat the CTA as a single entity and to maintain a secure platform for the range of intelligence-led activities which will be necessary at different times and in different places within it. We do not think we can readily differentiate provision for the Crown dependencies without prejudicing those aims—in other words, without prejudicing the status of the CTA. Clause 46 leaves intact the broad framework for the CTA contained in the Immigration Act 1971, including the general provision that those arriving on local journeys do not require leave to enter.
	The Crown dependencies were consulted at length. Part of the problem is that, after all the consultations, they were a little surprised when they saw the legislation as it stood. We will have to talk to them a little more about exactly why we have done this, because we believe it is important to keep the CTA as it stands.
	Amendments 108A to 108D would provide that persons both arriving and departing from another part of the common travel area are not subject to control. Amendment 108CB would widen the forms of acceptable documentation for travel on air and sea routes between the Republic of Ireland and the United Kingdom. A passport or national identity document provides the most secure way of establishing nationality and identity, and it ensures that carriers may discharge their legal responsibility to transmit valid passenger data. The requirement to carry a passport or national identity card is consistent with practice on all other international routes, and we think that accepting less secure forms of documentation will threaten our border security. The noble Lord, Lord Shutt, gave a very good argument as to why identity was so important—it was also a very good argument for why we should have identity cards, so I thank him very much for that.
	Amendment 108CA would allow those who have been issued visas in the Republic of Ireland to enter the UK without leave. We do not think that this is the correct approach. Instead, we will continue to work closely with the Government of the Republic of Ireland, and the Crown dependencies, to secure the external CTA border and explore the merits of a common visa with the Republic of Ireland.
	All of these amendments would undermine the clause and prevent the UK Border Agency from carrying out effective border controls on air and sea routes between the Republic of Ireland and the United Kingdom, preventing important improvements in our ability to flexibly combat illegal immigration, trafficking, terrorism and other wider crime.
	I will now deal with the Question whether the clause should stand part. The UK already has some of the toughest borders in the world. The e-Borders programme has tracked 80 million passenger movements, leading to 34,000 alerts and almost 3,000 arrests, and we have brought forward the timetable for the full roll-out of e-Borders, including to the CTA.
	The UK will continue to work closely with the Irish—as we have done—to tackle the major issues that face us today, from trafficking and terrorism to illegal immigration and drug smuggling. As I say, these are real worries because there is a chink there that is being exploited by the bad guys. As I have said before, we want to continue to treat the common travel area as a single entity, and Clause 46 leaves intact the broad framework for the common travel area that has existed since its inception in the 1920s.
	We have made clear the value that we attach to the political, economic and social benefits which the CTA brings. We are committed to maintaining the CTA and preserving those benefits. But we have reviewed, and we will keep under review, the practical operation of the CTA, to ensure that we maximise protections within it and that our arrangements remain fit for purpose. We committed to review the arrangements of the CTA in the 2007 "Securing the UK Border" strategy and the Security in a Global Hub report from the Cabinet Office, and this stemmed from my reviews in 2007.

Lord Shutt of Greetland: I have listened quite carefully. If the Minister gets his legislation, what is special about the common travel area? What does it mean any more?

Lord West of Spithead: There will still be considerably greater freedom of movement than there is in moving from nation to nation outside the common travel area. The border will effectively be that around the CTA, which is the bit that we are really strengthening greatly; so there will be a difference. It will be different from flying to and from the US.

Lord Teverson: I do not understand what the difference is between flying from London to Dublin and flying from London to Brussels.

Lord West of Spithead: You will carry exactly the same things with you on the plane, because you have to have a way of identifying yourself. It is based on the principle that, once a person has been granted leave to enter one part, they will not normally require leave to enter another part of it while that leave is extant, and provided they do not leave the CTA, this will not change. That will still stand when they are inside the CTA.
	We have now reviewed the arrangements of the CTA and committed to implement a number of key reforms. Clause 46 of the Borders, Citizenship and Immigration Bill is the first step in taking these reforms forward. We have been talking with the Republic of Ireland about these things.
	We are clear that we are not abolishing the CTA. The CTA is based on the principle that once a person has been granted leave to enter one part, they will not normally require leave to enter the UK while that leave is extant and provided they do not leave the CTA. This will not change.
	Since 1997, the Republic of Ireland has maintained an immigration control on third country nationals arriving directly from the UK, including flights between Northern Ireland and the Republic of Ireland. British and Irish passengers are obliged to satisfy an immigration officer that they are CTA nationals. These changes will align our immigration procedures on intra-CTA routes more closely with those of the Republic of Ireland. Similarly, these reforms will align the UK's CTA immigration controls more closely with its customs controls. UK customs controls already operate on routes between the Republic of Ireland and the UK and the Crown dependencies and the UK, with the exception of routes from the Isle of Man to the UK.
	The modest change in the Bill will allow important improvements in our ability to combat illegal immigration, terrorism and wider crime. It should be considered as one aspect of the wider reform of the CTA which will preserve its special nature. Those aims of improving security while preserving the benefits will guide our consideration of any further reforms. We must also recognise the facts of geography. The practical challenges of introducing routine border controls on the land border would entail costs that outweigh any theoretical gain. As with a lot of counterterrorism, you could expend our national wealth on it, and it has to be risk-based. That is not on the agenda.
	Some have tried to argue that there is no point in having the new controls on air and sea routes between the Republic and the UK which we propose if they are not replicated at the land border or on journeys from Northern Ireland to Great Britain. But our aim is not uniform and impregnable defences, which are of course unachievable. Our aim is to change the odds and make life significantly more difficult for people who are trafficking, illegal immigrants, other criminals and terrorists. Variable, selective and intelligence-led action can be particularly effective in doing that; we know that historically. CTA reform needs to be considered together with all the other things we are doing to strengthen our border and immigration systems both now and in the next few years.
	The e-Borders programme is particularly relevant as it will be the platform used to collect data. The platform will collect and analyse passenger, service and crew data provided by air, sea and rail carriers in respect of all international journeys to and from the United Kingdom in advance of travel. That will allow resources to be targeted on those intending harm to the UK or to deceive the UK authorities, while enabling the majority of bona fide passengers to continue their journey with minimal disruption. The e-Borders platform will receive and process travel document information for 100 per cent of passenger and crew movements by March 2014. Under e-Borders, it is the responsibility of carriers to submit passenger information via pre-defined interfaces to the operations centre in advance of travel.
	The legislation will mean that passengers on air and sea journeys from the Republic of Ireland to the UK will need to hold travel documents that satisfactorily establish identity and nationality so that carriers may discharge their legal responsibility to transmit valid passenger data, regardless of whether an immigration control is being exercised on that particular route at that time.
	Outside the CTA reforms we are also considering other changes. Under Section 14 of the Police and Justice Act 2006, the police have the power to require carriers to provide passenger data on specified domestic air and sea routes. That power could be extended to cover routes between Great Britain and Northern Ireland. Those routes offer the most suitable screening and intervention opportunities to address vulnerabilities from those crossing the land border between the Republic of Ireland and Northern Ireland but we are not proposing setting up immigration controls on this route or requiring passengers to carry a passport or national identity document.
	The Police Service of Northern Ireland and other UK police forces would then be able to use data collected to support intelligence-led interventions to counter terrorism and tackle serious and organised crime such as trafficking.
	The Government have yet to complete consideration of when the 2006 power to capture data on Northern Ireland-Great Britain routes would be introduced. We intend to consult in the spring, with the consequent secondary legislation—for affirmative action—being taken forward in autumn 2009.
	I was asked many questions and will address some of them now. The Irish are fully supportive of our reform plans. The noble Lord, Lord Teverson, asked whether that means that we do not trust them. I would put it the other way, because the Irish are very keen on receiving the data from us: on that basis, perhaps they do not trust us. Let us put it differently: we both want to be absolutely certain what movement is happening because some of the bad guys are coming from us, from Northern Ireland to the Republic. The programme is there to obtain a handle on how bad they are and what they are doing.
	The noble Lord, Lord Shutt, asked whether the plans had been discussed with the Council of the Isles. My right honourable friend Phil Woolas has written to the British-Irish Inter-Parliamentary Body and the British-Irish Council about our proposals.
	I think I have covered why we were operating a different policy on the Republic of Ireland and Crown dependencies routes. The Republic of Ireland operates its own separate immigration control and the Crown dependencies are in practice very closely aligned and operationally integrated with those of the UK. Of course, international routes into the Crown dependencies are very limited.
	On the Crown dependency-to-UK route, we will increase the frequency of intelligence-led controls and we will not introduce fixed or routine controls or a document requirement to come from there. We have been in negotiation with the Crown dependencies. All I can assume is that this was not quite what they had expected to come out of the prolonged negotiations and we must have more discussions with them.
	On consistency with Ireland's approach, I have already mentioned that since 1997 the Republic has maintained immigration control on third-country nationals.
	In response to the noble Baroness, Lady Hanham, the impact statement considers all impacts of public, private and third sectors. I have a very comprehensive breakdown of the costs and so on, and perhaps I may write to her and others who are interested in seeing them.
	There will be an impact on terrorism—I mean tourism. I certainly hope that there is an impact on terrorism because that is the whole point of doing the bloody thing—please excuse my unparliamentary language. The point of doing it is to get at the criminals and the terrorists, but there will also be an impact on tourism, although exactly what that impact will be is not quite so clear-cut. Perhaps I may write with the details because the figures are not very precise, but it is appropriate that we should look at that. A balance has to be struck. If the cost is £7 million, for example, we have to ask whether the extra safety that we will get as a result of the measures that we are taking is worth that £7 million.
	If there are any questions that I have not covered, perhaps noble Lords will get back to me and I shall try to respond to them in writing on the specific points. The noble Lord, Lord Teverson, raised the question of Schengen. As I said, there is no intention of our being part of that or of going in that direction at the moment. I think that we have more effective and secure borders because we are not part of it, and that is a good thing, bearing in mind some of the risks that there have been in the past.
	As I said, I do not regard the decisions on Clause 46 to be consequential on a decision on the amendments, and I should be very grateful if the noble Baroness would withdraw the amendment.

Lord Brooke of Sutton Mandeville: Perhaps I may make a brief intervention. I have taken an interest in the subject of security amid these islands and have alluded to it during this Committee stage. I did not speak to the amendments moved by my noble friend Lady Hanham because I realised the Government's motivation behind this clause and therefore gave them the benefit of the doubt until I had heard their case.
	However, I make one small warning on a matter which the noble Lord mentioned in his concluding remarks, and that relates to the British-Irish Inter-Parliamentary Body. It was founded in 1990, arising out of the Anglo-Irish agreement, and the unionists were not prepared to join it because that was its origin. My noble friend Lord King of Bridgwater, who had been Secretary of State in Northern Ireland at the time that the agreement was signed in 1985, served on the body from 1992 to 1997, when I took his place and served until 2007.
	The body has been an outstanding success in improving relations and reducing suspicions between Members of this Parliament and Members of the Dáil. After the Belfast agreement, we were joined by elected representatives from the Isle of Man and the Channel Islands, the Scottish Parliament and the Welsh Assembly. I understand that the unionists are now to join the body, which is a good index of improved relations within Northern Ireland, but ironically it occurs at the very moment when the body is wondering what its purpose will be from now on. At least in the short term, I congratulate the Government on having given a raison d'être to the body, which is shortly to meet for one of its semi-annual plenary sessions in County Donegal—a meeting which may well occur before this Bill concludes its passage through this House. The body meets alternately between the Republic and Great Britain.
	The one cautionary word that I utter is that, if this Parliament has had difficulty in knowing what the Government are about, it may well be that, when the group that I have described comes together in County Donegal within the next month or so, it will have the same degree of ignorance of exactly what is happening. I mention quietly—the noble Lord will already have realised this—that, because it is on Irish soil, it will be Irish Ministers who answer the questions.

Baroness Hanham: I thank my noble friend for that helpful intervention. I feel very inadequate as he has a great deal more experience of Northern Ireland than probably many of us here today, except those who live there. I am grateful to him.
	I have two questions. I tell the Minister now that I shall withdraw the amendment but I shall come back to it on Report because I think that there are still too many issues outstanding here. At least two of those concern the amount of consultation that has taken place. The Minister says that there has been a great deal of consultation with the Government of the Republic of Ireland, who are in favour of it, and I have nothing that gainsays that. However, I am a little perturbed when he says that he feels that they should probably talk to the Council of the Isles to try to reassure it about what is being proposed. It ought to have been reassured before the measure was put forward—it is too late. Our information is that the consultation process with the islands was not adequate. I hope that by indicating now that I will come back to this, perhaps by the time we get to Report the Minister will have been able to ensure that at least proper discussions have been undertaken with the island authorities so that they are clear and support what is being done in their name.
	I am also interested that the British-Irish Inter-Parliamentary Body will be discussing this in a month's time. Presumably the group has not discussed it before. Again, one would have thought it to be a major body to give consideration to the issue.
	There is concern about the Government's proposals. The Minister said that the common travel area is not being dismantled but it depends how you define the common travel area. If it is to give unfettered movement between one country or countries and another, clearly that is being put in jeopardy by these proposals. The Minister has said a great deal about the bad guys; there have always been problems within Ireland and elsewhere and difficulties with people coming into this country. Indeed, I remember the Troubles very well and the problems there, but at that time there was still pretty much freedom of movement. I am not convinced that the measures are justified. It would be helpful to have a little more idea of how deep the consultations have been, particularly with the islands, and perhaps for us to have some idea of what the Irish Government feel, although the Minister said that they were in favour. For today's purposes, I beg leave to withdraw the amendment.
	Amendment 108A withdrawn.
	Amendments 108B to 108D not moved.
	Clause 46 agreed.
	Clause 47: Restriction on studies
	Amendment 108E
	 Moved by Baroness Hanham
	108E: Clause 47, page 39, line 32, at beginning insert "where leave is granted for the purpose of studies in the United Kingdom,"

Baroness Hanham: We now move to the other "stray" clause in the Bill. I shall also be speaking to Amendments 109 to 110A, and Clause 47 stand part is included in the group so that we can have a wider discussion on what is proposed.
	I oppose the clause as it stands as there are not enough safeguards on what the Government are doing, so I shall give a brief outline of each amendment. Amendment 108E would restrict the power to impose a condition regarding studies so that it could be imposed only on migrants who had been given leave for the purposes of study rather than anyone with limited leave to enter or remain. Amendment 109, which is a probing amendment, would limit the condition on studies that could be imposed on someone with limited leave to enter or remain, thereby allowing the imposition of a condition that tied the person to study at a particular institute. Amendment 110 would require the Secretary of State to consider immediately any application to vary a condition regarding studies, and Amendment 110A would ensure that these conditions could not be imposed retrospectively.
	The amendments would improve the clause and assist with the intention by ensuring that the scope of the power properly matched its stated intention. In other words, it would allow the permission granted to overseas students to be linked to the particular institution that sponsors them under the points system.
	When the Minister replies, will he confirm that if a student wishes to change a course within his sponsored institution, he will be able to do so without having to appeal again or make a new application to the UK Border Agency? Clause 47 appears to allow for any condition to be imposed restricting the studies of anyone with limited leave to enter or remain in the United Kingdom. This could include restrictions that would tie a foreign student to a particular institution and require it to inform the UK Border Agency of a wish to change institution for the purposes of sponsorship and regulation of the points-based system. It could also include restrictions on any migrant with limited leave to remain or enter, including those who are undertaking, or wish to undertake, studies, who are not here as foreign students under the point-based system, migrant workers, those joining partners or other family members and refugees.
	I should like to see Clause 47 work effectively and to its purpose. For that, students must be sure of where they stand—hence our amendment on retrospectivity. They must be sure that in any dealings they have with the Home Office if they wish to change their studies within an institution—I hope the Minister will tell me that that is not necessary—or to change institution, it will deal with those applications speedily and efficiently. I have previously raised concerns that a student can get stuck on a course that is wrong for him because he cannot get a decision from the Home Office that would enable him to change his course or institution and he would require sponsorship by the new institution. Can the Minister give me assurances about how those applications will be handled and that they will be done with some speed?
	The Minister will recognise, as we do, that the huge majority of overseas students come here to study and, by doing so, to enhance their own learning, skills and abilities and that the reputation of this country relies, to some extent, on their view of what happens when they come here. Many of them bring with them, as they have to, financial assistance to those institutions in the form of substantial fees. We must get right the balance between the need to ensure that people coming to this country to study are bona fide and making it impossible for them to change their course if they are here. If someone suddenly finds that he does not want to be a consultant engineer but a doctor, we must make clear that that can happen, the process by which it can happen and the fact that it can be done in a timescale which will enable him to move from one course or position to another within the ambit of time that would enable him not to get left behind for too long.

Lord Wallace of Saltaire: I declare an interest as a retired academic, although I still have a number of PhD students, some of whom have not completed their PhDs in the requisite preferred three-year period. Happily, at the moment, I have none from outside the European Union, but several of my colleagues at the London School of Economics do. I recognise this clause as an old friend. We have been through this over many years, and my first question has to be whether the Government have fully consulted Universities UK and whether Universities UK has expressed itself happy with this. On previous occasions over at least the past 10 years, we have had problems when those in Government concerned with higher education have taken one view and those in the Home Office concerned with stopping overstayers have taken an entirely different view, and it has been clear that there has not been a coherent government position. I hope that that is not the case now.
	We recognise that there is a problem with overstayers. Nevertheless, we also recognise that, given the nature of research degrees and the quality of research in this country, it is very difficult to tell people that they will spend only three years examining a particular problem. Very often, when you start out on a research degree, it is very difficult to say how long it will take. Over the years, we have seen limitations on how long people are allowed to enter for and rising costs for renewing their visas when the time comes. We are putting obstacles in front of bright young people who want to study in Britain.
	Many of us have argued that the answer had to be in the registration of institutions since, as I have understood on several occasions, the problem has been most acute with fly-by-night colleges or second-floor colleges setting themselves up as the London college of whatever it is that attracts people in from obscure parts of the world. It would have been, and remains, relatively easy to sort out which are genuine institutions of further and higher education and which are fly-by-night operations. I am conscious, however, that it is not always as easy as that. I was lobbied on my way home the other night by a woman who used to be my Alexander technique teacher and who is currently training Alexander technique students from Latin America. It takes two to three years to train them through an apprenticeship, and one of her immediate concerns is precisely Clause 47.
	I therefore register the unhappiness throughout the higher education sector at this whole process and would like reassurance that there has been very full consultation in government with what I think we are now supposed to call DIUS—no doubt it will have a different name in a couple of months—and effective consultation with Universities UK.

Baroness Finlay of Llandaff: I declare an interest on behalf of Cardiff University and its courses and as a co-opted member of the Medical Schools Council. I apologise to the Committee for not contributing at Second Reading; there was a clash of timing with other legislation.
	The amendment raises very important points and highlights concerns that have been expressed about the clause. I will confine my remarks to medicine. Students entering to study medicine at Oxford, Cambridge or St Andrews have no idea when they enter where they will do their clinical studies after their first three years. In fact, where they go depends on how they perform in those first three years, so it is completely unpredictable.
	The other difficulty is that the courses are for six years. At the end of the six years, the students have to enter a pre-registration year. Although they are paid and employed, they still fall under the supervision of the undergraduate dean. At the end of the pre-registration year, the Medical Act requires the undergraduate dean to state that the student is fit to be fully registered. The length of the undergraduate course alone does not determine the completion and registration of a medical degree. Without being registered—they are registered with the GMC—their degree has very little currency. The other problem is often that they do undergraduate studies and then wish to progress on to postgraduate studies. Indeed, they come to this country in the first place because that type of training is simply not available in the country in which they have been, because the places are so restricted or because there have been restrictions against the ethnic group to which they belong in their country of origin.
	As the noble Baroness, Lady Warwick of Undercliffe, outlined at Second Reading, the amount of money that is brought into this country is not inconsiderable. She estimated that it was more than £100 million. I think that that is probably an underestimate, because postgraduate students come over as well. Those who come over as postgraduate students present a different set of problems. We now have an increasing number of distance-learning courses. The students come across for study days but do a lot of study in their own country on their own clinical base. They then come back for their exams and to graduate. They may be on such a course, which is a part-time course, for up to six years. The length of time will depend to some extent on how quickly they progress through the course and to some extent, as they are adult learners, on what other life events intervene that cause them to require an interruption of study. When they are the lead in their specialty in their own country and they want to undertake postgraduate study abroad, it takes very little to make the workload insurmountable, leading to them having to take a temporary leave of absence from their course.
	One difficulty for students on a distance learning course is how much they have to guarantee the maintenance. Perhaps I may refer to the course that I run which takes students up to MSc level. If they come across for a study week, will they have to guarantee that they have maintenance funding for that week when they have already enrolled in a course of study?
	During this debate, we have heard much about those of mal-intent, but I do not think that we should underestimate the economic, cultural and scientific advantage to this country of many of the students who come here. We are in very stiff competition for those students with other parts of the world, particularly the USA and Australasia, but increasingly with other countries, particularly in the Far East. The current economic climate means that any students have to be very careful about the fees that they pay and the obstacles which are in their way to coming here.
	In summing up, I ask the Minister to confirm that all these points have been considered in discussions that he has had with Universities UK, to inform the Committee how extensive his discussions have been with the Medical Schools Council and to say how postgraduate students on distance learning courses in particular would be affected by this clause.

Lord Brooke of Sutton Mandeville: Once a year, when I was in the private sector, I used to attend one of the remarkable futurology courses put on by the great Herman Kahn, who was a remarkable polymath. On one such occasion, I recall him saying that he thought that the United Kingdom did not need to have great concern about the post-industrial society because there were areas of skills and learning in which we were deeply impressive on a world scale and one of those was education.
	For a long time, I have been conscious of the campaign to get students to come to this country. I was directly involved as higher education Minister between 1983 and 1985 when full-cost fees for overseas students were introduced. The legislation for full-cost fees was deliberately ambiguously defined, but not quite enough use was made of that ambiguous definition by some of the higher education establishments.
	I also attended the Commonwealth education Ministers' conference in Nicosia in 1984, which frankly was a rerun of the Battle of Rorke's Drift, as far as the British Minister was concerned. Mr Ramphal, who was then the secretary-general of the Commonwealth Secretariat, saw an opportunity. Normally the Commonwealth education Ministers met every four years, but UNESCO was meeting in Sofia the following year. Mr Ramphal reckoned that most of the Commonwealth education Ministers would be there so he suggested that we should have a one-day follow-up and I was exposed to the problem in an extremely vivid way.
	I understand Governments' 20-year balancing act between ensuring that recruitment to our higher education institutions was reinforced and their concern about individual controls. Hence, I understand the logic of the amendments which my noble friend Lady Hanham has tabled. However, for 24 years, I was a central London MP, in a constituency which had a large number of language schools. Are students in language schools, but not in higher education, covered by this legislation? I assume that they are because I see no wording to suggest that they are not, but it would be helpful to have that confirmed.
	In that regard, over that quarter of a century, I had a huge postbag of immigration cases. I was conscious how often Lunar House and the Home Office, on the one hand, and the language schools, on the other, totally lost track of students who had arrived at a language school and might well have disappeared into the larger community. I am sympathetic towards, and supportive of, what the Government seek to do. I also wholly understand the questions raised by my noble friend.

Lord West of Spithead: First, I declare an interest: I am chancellor of a university. It is interesting to see how many Members of the Committee are involved in education, which, in many ways, I find reassuring.

Lord Wallace of Saltaire: We are the biggest lobby in the House, as we have said.

Lord West of Spithead: I thank the noble Lord for that warning before I say anything else.
	In speaking to this group of amendments, I do not regard the Question that the clause stand part to be consequential on any decision on Amendments 108E, 109, 110 and 110A. I have listened very carefully to a wide range of points made in the debate on the amendments and more generally on the clause. I must resist the amendments, but I want to go into the reasons very carefully. I do not apologise for going into detail in this longish script. I went through it in great detail with my team to ensure that it answered most of the questions. I think that is useful for Hansard and the Committee.
	Members of the Committee may be aware that we have reconsidered the proposed policy for tier 2 with regard to the maximum length of leave. We have changed our policy and will now grant a tier 4 general student studying a course at degree level or above leave to enter or remain for the duration of their course, as under the current system. I think this is a significant change and one which makes a lot of sense. I am grateful for the conversations I have had with a number of Members of this Committee in reaching this decision. I am sure noble Lords will appreciate that the change is intended to ensure that international students wishing to study comparatively longer courses, such as medicine, are not deterred from coming to the United Kingdom to undertake their studies.
	Thus, I hope I have provided the House with reassurance that flexibility in the rules allows the Government to make very rapid decisions such as this. This is a fundamental part of the points-based system but, for understandable reasons, primary legislation is needed to underpin certain aspects of the system. Clause 47 is thus essential to the operation of tier 4 as it allows for the control of foreign students once they have entered the United Kingdom to study at a licensed institution.
	It is the Government's intention that the restriction on studies would be placed on those migrants granted leave to enter or remain as tier 4 migrants; that is, students. Furthermore, such a restriction will restrict a migrant to studying at a specified institution, rather than restricting their chosen course of study. I say to the noble Baroness, Lady Hanham, that I can provide an absolutely clear and unequivocal reassurance to the Committee that the Government do not intend to use this provision to prevent students from moving courses within the same sponsoring institution. By imposing a restriction on a migrant, so that he can study only at a specified institution, he would have to apply to the UK Border Agency to vary the conditions of his leave should he wish to change institution. This will allow the UK Border Agency to check that the institution to which the migrant wishes to move is a bona fide education provider, with a sponsor licence. Having the ability to link a student to a particular licensed institution is integral to the successful operation of tier 4, the student tier of the points-based system.
	I note that these amendments seek to probe why the Government believe the clause should provide a broad power to restrict a person's studies. I understand why Members of the Committee may wish to restrict this power further so that, on the face of the Bill, we are very specific about what this restriction means and on whom it may be imposed.
	However, it is usual practice for the overall architecture of the immigration system to be set out in primary legislation, with the Immigration Rules containing the detail of how the power will apply. While I appreciate that noble Lords may have their reservations about this approach, the ability to amend the Immigration Rules, rather than having to amend primary legislation, is an essential tool which is vital to ensure that necessary legislative changes can be implemented quickly and effectively, as shown with the point I mentioned about the maximum length of stay for people doing a study.
	As Members of the Committee will be aware, we take seriously our duty to consult widely before making changes to the Immigration Rules and, more often than not, our rules have been prayed against to allow the opportunity for debate in the House. With that in mind, Clause 47 was deliberately drafted in this way in order to achieve consistency with the wording used in relation to the imposition of other conditions under Section 3 of the Immigration Act 1971—in particular, the condition restricting a migrant's employment or occupation.
	Under the skilled-worker tier, tier 2, of the points-based system, the Immigration Rules set out the conditions on a migrant's employment, including a restriction on taking any employment other than with his licensed sponsor, supplementary employment that is outside of his normal working hours and voluntary work. We envisage that the condition this clause will allow us to impose on a migrant in relation to his studies will operate in much the same way, with the Immigration Rules specifying where these restrictions will apply, clearly stating that the restriction will be in relation to where the migrant studies and will be imposed on those granted leave to enter or remain under tier 4.
	As I explained earlier, a student applying for leave to enter or remain under tier 4—the general student category of the points-based system—will be granted leave for the duration of their course. With such potentially long grants of leave that will cover a student's entire course, it will be of even greater importance that we make clear the procedures a student will need to follow should he wish to change to a new institution.
	I must resist Amendment 110 because I am confident that the revised guidance, which I will address shortly, that will be published when we make changes to the Immigration Rules in order to impose this condition on tier 4 students, will specify exactly what a student will need to do if he or she wishes to change institution, in terms of the requirement for him to submit a new application to the UK Border Agency. The revised guidance will also make clear the likely timeframes for consideration of an application, so that a student is able to submit his application to allow him to take up his studies at the new institution in good time.
	I also think it would be inappropriate to specify in primary legislation that this type of application merits more prompt consideration than any other type of application for leave to remain as Amendment 110 suggests. Other applications for leave to remain may have equally or more compelling reasons for immediate consideration, and for which a migrant is paying a fee and expecting similar high standards of customer service.
	Provided a student meets the points requirement for tier 4, which he will be able to do by having a valid visa letter from a UK Border Agency-licensed sponsor and by meeting the maintenance requirement for extension applications, the application to change institution should be relatively straightforward and therefore considered within our published service standard timescales for postal and in-person applications.
	The border force aims to decide 70 per cent of postal applications within 4 weeks, 20 working days, and 90 per cent within 70 working days. In addition, albeit subject to higher application fees for a premium service, the border force aims to decide 90 per cent of applications made in person at a public inquiry office within 24 hours.
	Turning to Amendment 110A, we believe that amending the clause in this way will seriously undermine one of the key parts of tier 4 of the points-based system, essentially creating two distinct categories of student; namely, those granted leave to enter or remain under tier 4 before enactment of this clause and those granted leave under tier 4 after enactment. Let me first make clear to Members of the Committee that the provisions of subsection (2) are not retrospective. While we wish to be able to add the condition to all those who have been granted leave as a tier 4 student, if such a student changed institution between the launch of tier 4 and Royal Assent, without notifying the UK Border Agency of this change, he would not be subject to prosecution under Section 3(1)(c) of the Immigration Act 1971, nor would he be subject to removal under Section 10(1)(a) of the Immigration and Asylum Act 1999 for breaching his conditions of stay.
	Furthermore, there is no intention to impose this condition on any of the students already in the United Kingdom under the terms of the current student rules that will be deleted on the introduction of tier 4. Only those students that UK Border Agency-licensed education providers bring to the UK under tier 4 from the end of March, or those existing students who will need to apply to extend their leave to remain under tier 4 after its launch in March, will be subject to this condition.
	It may be helpful to the Committee if I explain how we will implement this condition. As soon as we have secured Royal Assent, it is our intention to amend the Immigration Rules, specifying that in addition to the conditions restricting a student's employment, we will also add a further condition restricting the student to studying at the educational institution that is acting as the student's sponsor under tier 4. As is usual practice, the Immigration Rules will be laid before Parliament for 21 days before coming into force, and we will look to publish revised guidance for tier 4 students around what this change will mean for them when we lay the rules.
	Once the rules are in force, the UK Border Agency will write to all migrants who had been granted leave to enter or remain under tier 4, informing them that they will, from the date of the letter, be subject to this condition. Hence, the condition will apply only from when the student is notified. At the same time, we will also inform these students of the potential consequences of any subsequent breach. Once subject to this condition, a tier 4 student would need to apply to the UK Border Agency to vary the conditions on their stay before moving to a new institution.
	If we were not able to apply this condition to those granted leave between the launch of tier 4 at the end of March and enactment of the clause, there would be a pool of students who could move institution without our approval throughout the duration of their stay. We have revisited the policy on the maximum length of leave a student may be granted so that he may be granted leave for the full duration of his course, which could be five, six or even seven years in some instances. It is vital that the conditions of stay are applied equally to all students in the United Kingdom under the new system. If this were not the case, genuine students would risk being duped by bogus colleges which may charge high fees for non-existent courses. These colleges damage the UK's excellent reputation for education provision abroad, which has been referred to by a number of speakers, not least the noble Baroness, Lady Finlay. The noble Baroness referred to value. These students are of great value to the United Kingdom, both culturally, as has been said, and financially, to the sum of £2.5 billion in tuition fees alone last year. That is a very significant amount of money and it is very important for this nation.
	Applying this condition to all those granted leave under tier 4 will make it much simpler for all such students to understand what is required of them when changing institution. It will be easier for the education providers that advise their students on what they will need to do when seeking to change institution. Applying the condition across the board to all tier 4 students will mean there is just one process for all. I do not apologise for going through that background because it is important to understand where we are coming from.
	The noble Baroness, Lady Hanham, asked how applications will be considered. Provided the student meets the points' requirement for tier 4, an application to change institutions should be very straightforward and will be considered within our standard service timescales, which are clearly laid out, and I touched on them earlier. The noble Lord, Lord Wallace, asked whether we have fully consulted with Universities UK. Yes, we have consulted it on this provision. Officials at the Home Office and the UK border force have regular meetings with Universities UK to consult on tier 4 of the points-based system.
	The noble Lord, Lord Wallace, and the noble Baroness, Lady Finlay, asked about PhD students. As now, we will grant leave for the duration of the student's course, as specified by the sponsoring education institutions. If a PhD student does not complete his course within this time period—I know that happens because, goodness me, they really go on sometimes—he will be able to apply for an extension of his leave. The revised maintenance requirement for extension applications recognises the progress that a student has made to date without recourse to public funds.
	The noble Baroness, Lady Finlay, mentioned distance learning. Students coming to the UK for short periods of study and do not intend to work will be able to come as student visitors. That route sits outside the points-based system and does not require the same sponsorship and maintenance requirements as under tier 4 because they may only stay for up to six months and cannot work. The tier 4 requirements do not apply. The noble Lord, Lord Brooke, asked whether students in language schools were in higher education. The answer is yes; students who intend to study are counted within this category.
	I hope that that covers most of the extra points. Perhaps Members of the Committee will come back to me if there is anything that I have not covered and I will get back to them in writing. I hope that this response deals with the Question that Clause 47 should stand part of the Bill and I would be grateful if the noble Baroness would withdraw her amendment.

Baroness Finlay of Llandaff: I am most grateful to the Minister for having addressed those points. One outstanding point on which I would appreciate clarification is that of foundation year 1, which comes after sitting finals but before going onto the medical register. I feel it would be appropriate to give notice that I have tabled a Question relating to this for tomorrow, and I will pursue this further then.

Lord West of Spithead: I am afraid that I do not know the exact answer to that, but I shall by tomorrow.

Lord Wallace of Saltaire: I thank the Minister for that extremely helpful and constructive response. I would be certainly be willing to withdraw my opposition to Clause 47 standing part, subject to the noble Baroness, Lady Hanham, doing so, but I wish to stress a few issues further. The bogus college issue has been with us a long time; in this House, we have been round it for 10 years or more. There have to be other ways to get at it. It is relatively easy, when our missions abroad consider visas, to tell them which are the reliable further and higher education colleges and which are not. That is always raised by the Home Office in this context, and it is not half such a difficult problem as some others.
	We all wish to emphasise that effective co-ordination between the Home Office and the Department for Innovation, Universities and Skills is an important part of this process. One cannot stress too much that at the top end of our education market, dealing with visiting students sympathetically is important in a host of ways. In the scientific and medical fields, there is the contribution that makes to British scientific and medical excellence, and the extent to which that maintains an international scientific community. In the social sciences, we are talking about soft power and cultural diplomacy.
	I was sitting here thinking that among my own former students I now have only two Commissioners of the European Union, one head of state and a couple of deputy foreign ministers, but if I were to add the other members of my old department at the LSE we could come to a moderately decent number of politically influential people. It is important to maintain them as friends of the United Kingdom as they pass from one generation to another, so it matters how we treat them. Part of what we need to get across is that we will deal with them sympathetically and not treat them all as potential criminals and, while we all know the Home Office of old, we hope that in this respect the Home Office recognises that one has to keep some doors open as well as having one or two closed.

Baroness Hanham: I, too, thank the Minister for an illuminating and extremely helpful reply, because he has made clear a process that was not at all clear before. As long as I heard the Minister correctly, his reply demonstrated a sort of sympathy and pragmatism toward students. First, those who may want to change their course within the institution that sponsors them will, as I understand it, be able to do so without coming back to the UK Border Agency. Secondly, for those who need or want to change institutions, there should be a reasonably rapid turnover from the agency as long as that institution is licensed to sponsor and they have the sponsoring letter. That was really what the amendment was all about, and we have had a clear explanation from the Minister. Unless I choke when I read Hansard afterwards, I may not need to return to this issue. I shall not say that I definitely will not, but for today I beg leave to withdraw the amendment.
	Amendment 108E withdrawn.
	Amendments 109 to 110A not moved.
	Clause 47 agreed.
	Clause 48 agreed.
	Amendment 111
	 Moved by Lord Avebury
	111: After Clause 48, insert the following new Clause—
	"Fingerprints and samples taken under port and border controls powers
	(1) The Terrorism Act 2000 (c. 11) is amended as follows.
	(2) In paragraph 14(2) of Schedule 8, for "The fingerprints" substitute "Subject to sub-paragraph (2B), the fingerprints".
	(3) In paragraph 14 of Schedule 8, after sub-paragraph (2A) insert—
	"(2B) Fingerprints or samples taken from a person detained under Schedule 7 must be destroyed within one month after the date on which the fingerprints or samples were taken, unless the person has given his or her written consent to retain the fingerprints or samples beyond this period.
	(2C) Sub-paragraph (2B) does not apply to fingerprints or non-intimate samples taken under paragraph 10(4)(b).""

Lord Avebury: On Friday 31 October, I had a telephone call from Mr Yousif al-Khoei, the distinguished head of the al-Khoei Foundation, which is a Shia charitable and religious organisation in north London, about the detention of a British imam who had arrived earlier that day at Heathrow Terminal 1 on a flight from Damascus. I spoke to immigration officials at Terminal 1 three times—the third time, to the chief immigration officer—and was told on each occasion that no British citizen was being detained, although on the third occasion I was asked whether I might have been talking about somebody with a slightly different name.
	Finally, the helpful immigration duty officer to whom I spoke at about 2030 told me that the imam had been arrested on the landed side of immigration control, and was under investigation by the Special Branch. She got the senior Special Branch officer on duty at Terminal 1 to ring me at my request, and he confirmed that the imam, Mr A, had indeed been detained for questioning, that he had been fingerprinted and had a saliva DNA sample taken, and that he had then been released after something like two hours. A minicab sent by his wife to fetch him from the airport was waiting all that time. The numerous questions asked during the interview, I subsequently discovered from Mr A, mainly concerned the reasons for his frequent visits to places such as Syria and Kuwait, and he answered that he attended religious conferences and meetings in those countries.
	Later, Mr A sent me a copy of the notice that was served on him under the Terrorism Act 2000, a copy of which I have passed to the Minister, explaining that the requirement to be questioned did not necessarily mean that the examining officer suspected him of being concerned with acts of terrorism, but was in order to enable the officer to discover whether he was such a person. The notice required him to give the officer any documents of a kind specified and said that the officer had the power to examine his luggage and to detain anything, including a document which the search revealed. The notice said nothing at all about Mr A's duty to give biometric samples; so, as my first question, is an examining officer supposed to notify the person separately of the intended taking of samples? If he is not, why is that not referred to in the main notice of examination served on a person at the airport under the 2000 Act?
	Following that incident, I looked up Schedule 7 to the Terrorism Act 2000, which quite properly gives the examining officer power to stop a person at a port in the border area, to question the passenger, to search him and his luggage and to detain any item of his property, while Schedule 8 provides that an "authorised person" may detain the passenger being examined. However, the taking of fingerprints and biometric samples is regulated by a different statute, the Police and Criminal Evidence Act 1984. It appears that the power to demand these samples does not even require that the examining officer suspects that the person has committed a criminal offence. In the case of Mr A, he was being examined not as a suspect but, as I explained, to determine whether he was a suspect. Nothing said in the course of the interview would have given the officer reason to suspect that he had committed any terrorist offence. Can the Minister confirm that the power to demand samples from a person being interviewed for this reason under the 2000 Act does not rely on any evidence that the person has committed such an offence?
	It appears, further, that under Section 64 of the 1984 Act as amended, fingerprints or samples may be retained after they have fulfilled the purposes for which they were taken. In the case of Mr A, the Special Branch told me that the samples were to be retained indefinitely. Although I got no elucidation of the purposes, I imagine that the idea is to build up a vast database of samples, which can be compared at later dates with biometric information obtained from crime scenes, whether terrorist or of any other kind. As of four months ago, I understand that there were 5 million samples on the National DNA Database, of which something like 850,000 related to persons either subsequently acquitted or not charged with any offence at all.
	On December 4 the European Court of Human Rights, in the case of S and Marper, ruled that the indefinite retention of biometric samples from innocent persons was a violation of Article 8 of the ECHR, on the right to respect for personal and family life. I wrote to the Secretary of State the following day, referring to the case of Mr A, drawing attention to the judgment and asking her to make a statement that she intended to destroy the samples of persons who were acquitted or not charged with any offence. In a reply dated 14 January, Mr Vernon Coaker, the Minister of State, said that the Government were considering the implications of the judgment and would agree with the Council of Ministers on how to implement it. For the time being, the law on the taking and retention of DNA samples and fingerprints would remain in place. I noted from an Answer that the Secretary of State gave to my honourable friend Mr Chris Huhne on January 14 that among the profiles on the database were 137,000 relating to children under 16 and that she had taken steps to have removed those that related to children who were under 10.
	The Government have now had three months to consider the S and Marper judgment and consult the European Council of Ministers. Can they give us an update on the number of profiles now held and on how many of them are of people either acquitted or not subsequently charged? Or are they continuing to collect and retain samples, and how many have been taken since the date of the judgment, 4 December? Will they now say what consultation they have had with the Council of Ministers and issue a detailed statement on the steps that they are taking to bring us back into compliance with Article 8? Have they suggested any other means of achieving this than the destruction of innocent people's samples?
	Everybody accepts and recognises the importance of combating terrorism, but if the Government think that it is necessary to sacrifice human rights for this purpose, we have to disagree. It is our human rights and the rule of law that we are defending against the terrorists. A society in which everyone's personal data are kept on record just in case they may commit a crime in the future is not our vision of the future of this country. I beg to move.

Baroness Hanham: The new clause gives us an opportunity to open up the question of the retention of biometric substances, fingerprinting falling within that, and I share the concerns of the noble Lord, Lord Avebury, about the fact that we have not yet responded to the European directive. I think that an order is coming up in the very near future, which I hope will indicate that we are about to take some suitable action.
	This clause relates to the fingerprinting of foreign criminals liable to automatic deportation. I want to ask the Minister, first, the reason for taking those fingerprints. I presume that it has something to do with stopping them coming back in. Secondly, how long is automatic deportation taking? We all know that a number of criminals are waiting to go. We are foxed at every turn, it seems, by the legal system. If their fingerprints have been taken and are still within our purview and control, I am not sure about the relevance of the fingerprinting to which the clause refers. Perhaps the Minister would be kind enough to tell us what is going on.

Baroness Miller of Chilthorne Domer: I had the great privilege yesterday to visit the National DNA Database at Hendon and spent a very informative morning. I learnt that there are instances when it is extremely useful to have on file the DNA records of people convicted of a criminal offence. Some detail was gone into about exactly how they were used. However, in the instance that my noble friend talked about, where an innocent person's records were taken and stored—it could apply to anybody coming through immigration—what provision have the Government made in the design of the database and the way that it operates for the deletion of innocent people's material. We know that it is very difficult: you have to go to the chief constable and get special agreement from him, which almost never happens. Is the database in any way designed so that deletion can take place without it being an incredibly time-consuming and expensive process? In the light of the European ruling, should not the Government be thinking about that urgently?

Lord West of Spithead: While I appreciate the thrust of the inquiry of the noble Lord, Lord Avebury, about the status of Schedule 8 to the Terrorism Act following the judgment in the case of S and Marper, I should be clear that I believe that the amendment would compromise the UK's security.
	As the noble Lord noted, my honourable friend the Minister for Policing has written to him explaining the Government's view on the case of Mr A. I believe that that reply still stands in this case. If it might be helpful to the noble Baroness, Lady Hanham, I would be very happy for her to see a copy of that letter, which explains the detail behind that case.
	As noble Lords may be aware, in the light of the judgment of the European Court of Human Rights on 4 December 2008 in the case of S and Marper, we are now considering how to implement it in a way which recognises the value of fingerprints and DNA data in protecting the public. A key part of the implementation process will be to engage in a public consultation on how best to bring the judgment into effect. Progress on implementation of the judgment is subject to review by the Council of Europe's Committee of Ministers, and the Government have submitted a report for the committee's next meeting on 19 March. The judgment recognises that other jurisdictions do not apply a "blanket" destruction policy to biometric data of those arrested and not convicted, but indicates that there is a need for a retention policy to reflect the fact that they were not ultimately convicted.
	As the Home Secretary explained in her speech to the Intellect trade association on 16 December, the Government will publish a forensics White Paper later this year. Included in it will be the Government's proposed response to the S and Marper judgment. There are clauses in the Policing and Crime Bill which are intended to allow for regulations to be made which set out the detailed provisions on the retention of fingerprint and DNA data. The contents of the consultation paper and the outcome of that process will inform the content of the regulations to be submitted to Parliament.
	The ability for police Special Branch officers to take fingerprints and samples at ports of entry has become an increasingly important tool in countering the activities of known or suspected terrorists. We would not wish to undermine the thrust of policy in relation to the strengthening of border controls—through, for example, biometric visas—by weakening this specifically counterterrorism measure. It would not send the right message to those who pose a threat to the UK or reassure the public at large.
	In 2006, the independent reviewer of terrorism legislation, the noble Lord, Lord Carlile, wrote to the then Home Secretary following a meeting with operational counterterrorism police officers. The noble Lord endorsed the use of fingerprints taken at ports, under Schedules 7 and 8 to the Terrorism Act, and considered them to be of potentially considerable value in the investigation and intelligence-gathering work of the police at ports.
	In the context of international travel, it is not unusual for individuals to enter or leave the United Kingdom for periods exceeding one month. It is obvious that the value of the police checking and capturing fingerprints at a port and holding them for a month in the context of a long-term visit or period of study is limited for counterterrorism purposes while the suspect remains in the UK beyond one month. Furthermore, should information be received from, for example, abroad, the police's efforts to identify a suspect who may be involved in terrorism, or perhaps locate how he left and entered the country, would be undermined dramatically if fingerprints had to be removed from records.
	Without wishing to prejudge the outcome of the Marper consultation, our view is that restricting the retention period to the extent that the amendment proposes would severely hinder the authorities' efforts to counter and investigate terrorism and the movements of suspected terrorists, and, potentially, remove a hindrance on terrorist activity provided by the examination powers in Schedules 7 and 8. However, we will of course revisit all those issues as part of our consultation.
	The noble Baroness, Lady Hanham, asked about the reasons for taking fingerprints. The proposed power to take fingerprints allows us to get fingerprints and fix the identity of the individual whom we have put in prison for crimes in the UK and whom we wish to remove from the UK. Then we have a record when he tries to come back into the country. That is the reason for the specific measure in the Bill. Those individuals whom we seek to remove are those who have been sentenced to up to 12 months in prison and are eligible for automatic deportation under the UK Borders Act 2007.
	The amendment in Clause 48 is a very minor amendment to the UK Border Agency's existing powers. I hope that that provides an answer to why we are taking fingerprints.
	On the specific amendment—and bearing in mind that a consultation is ongoing—I hope the noble Lord will await the Government's wider response to S and Marper, as committed to by the Home Secretary. I ask the noble Lord to withdraw his amendment.

Baroness Hanham: Consultations, consultations, consultations—but it depends who you consult. Will we at some stage be able to know who is being consulted? The people who tend to get left out of consultation are those who live in this country—the inhabitants. There is always consultation with lots of organisations, but it looks as though the ordinary man in the street, who at the moment, if you tested him, would think that the whole thing of DNA and fingerprints was totally alien, may not get consulted. Will the Minister assure us that he will be?

Lord West of Spithead: Perhaps I can get back in writing on exactly who will be consulted. I do not necessarily share the noble Baroness's view; the average man in the street often sees DNA as rather important, particularly in a case such as the one the other day when someone was found guilty of rape and killing a girl some years ago. The matter is not as clear-cut as might be said. DNA is an extremely useful tool and I do not think that the average man in the street necessarily is against it. However, this is a highly complex area, which merits much further debate. I have been told by my Box that there will be public consultation.

Lord Avebury: We are not arguing here about whether it is right to take fingerprints or DNA samples; that is taken for granted nowadays, but people are concerned about the extent to which these samples are stored on the national database. I believe that our system has more personal profiles on it than any other country in Europe, but that may be effective in enabling us to catch criminals. It is not the principle of taking samples in the first instance that we are discussing here but the indefinite retention of samples from innocent persons. I am most grateful to the noble Baroness, Lady Hanham, and my noble friend Lady Miller for their support for that principle.
	With respect, the letter from Vernon Coaker did not explain the detail. He went into the question only of how a person could be detained under Schedule 7 to the Terrorism Act; he did not explain how Section 64 of the 1984 Act allows the samples to be taken and retained indefinitely. That is the point of the amendment.
	I am very glad to hear that the Government are considering how to implement the S and Marper judgment. Is there any time limit for that process in the ECHR? It was on 4 December last that the judgment was issued, and I am certain that the Council of Ministers would not be happy about an indefinite extension of the time within which the Government must comply with the judgment. They say that they are exploring this by means of a public consultation. I was not aware of that, to be quite honest, and I would be grateful if the Minister could place details of the public consultation either on the Home Office website or in the Library of your Lordships' House so that we can all engage in the discussion.

Lord West of Spithead: I shall certainly ensure that we put those details on the website. I hope that we can put some sensible timescales to it as well. I shall see if that can be done.

Lord Avebury: I am most grateful for that. Could the report that was submitted to the Council of Ministers—this month, I think the Minister said—also be placed in the Library? We want to know what the Government's interim thinking is. I take it that the consultation and the report to the Council of Ministers are not being undertaken in a vacuum and that Ministers have certain ideas on what should be done to implement the S and Marper judgment. I am just curious to know, if the Minister can tell us this afternoon, what conceivable way there can be of implementing the judgment other than by the destruction of the samples.
	Obviously, one realises that in the first instance, when the samples are taken, you do not know whether the individual will be charged with an offence. But since the purpose of the Schedule 7 interrogation at the airport is to ascertain whether a person is a suspect or not, one would think that the information then obtained would enable the police—and, in particular, special branch—to determine that, and thereupon either to destroy the samples or to pass them to the prosecuting authorities, which will issue a summons for the offence in question. If neither of those things happens and, after two years, let us say, the samples have not been used to incriminate the person on any other offence that may have been committed in the mean time, by a comparison of the DNA or fingerprint samples, surely it would be time to destroy them. Could the Minister give some assurance at least that he is not intending to maintain the indefinite retention of the samples? That would be a step in the right direction.

Lord West of Spithead: The position on timing is that there will be a paper before the summer with draft regulations, which will go before Parliament by the end of this year, and this stuff will be put on the website. I see no reason why the response to the European court should not be seen as well. I will probably get into trouble for saying that, but I see no reason at all why it cannot be made available, so I shall ensure that that is done.
	The issue is not as straightforward as one might think. The judgment was complex in some ways, and I do not think really that it would do much good for me to go into some of the detail of it now, although I have a huge page of speaking notes with all the complexities of it. We are looking at this matter, and there will be consultation. We are going back to the court about this. Clearly, we will have to recognise the judgment of the court, which we do, and implement its findings. It indicated that our blanket policy of retaining fingerprints and DNA of people who had been arrested but not convicted, or of those against whom there was no further action, was in breach of Article 8. However, then there are a lot of complexities. Clearly, we will absolutely take notice of that and not do that, but the complexities mean that we have to go into this in some detail.

Lord Avebury: The bottom line was that we cannot retain the samples indefinitely without being in breach of Article 8. I am very glad to note the Minister's assurances that the public consultation documents will be placed in the Library and that we shall also see the submission to the Council of Ministers this month. On the basis of those assurances, I beg leave to withdraw the amendment.
	Amendment 111 withdrawn.
	Clause 49: Extension of sections 1 to 4 of the UK Borders Act 2007 to Scotland
	Debate on whether Clause 49 should stand part of the Bill.

Lord Hylton: I do not oppose the principle of Clause 49, although the word "thinks" occurs in the drafting, which might well be replaced by "reasonably suspects" or "is satisfied". However, I am greatly concerned about detention in England and in Scotland. Therefore, I tried to table a modest probing amendment as a new clause before or after Clause 51. The Public Bill Office told me that that had already been tabled by my noble friend Lord Ramsbotham. I therefore asked to add my name but, later, the amendment was disallowed and did not appear in the first Marshalled List. This was hard to understand, since other amendments containing new clauses were accepted.
	My noble friend's amendment would have stated that,
	"detention shall be for the shortest possible time"—
	and only—
	"where there are no alternative ways to ensure compliance".
	Such words would enshrine the language of Chapter 38 of the Home Office operational enforcement manual. Will the Government produce their own amendment along these lines or, better still, set statutory time limits for detention prior to deportation or more generally? Such limits exist in several European Union states, often specifying six months or less. Can the Minister tell the Committee what use is being made of bail, tagging and reporting as alternatives to detention? Why were the automatic bail hearings, provided in 1999, abolished by the 2002 Act? The numbers involved are not large, yet the cost to taxpayers is high. It has cost £96 million this year and will cost £107 million next year. I am sure that your Lordships will agree that it is wrong in principle that people should be held indefinitely, often without legal advice and usually without any judicial hearing at all.
	In January the London Detainee Support Group published a useful report called Detained Lives. It shows that up to 3,000 people are detained under immigration powers at any one time. It studied 188 cases of individuals who were held for one year or longer in prison-like conditions. The report is particularly good on the human consequences of indefinite detention. A significant number of detainees develop mental health problems or attempt suicide or self-harm. Riots and destruction of property are other bad consequences.
	I will now quote two particular cases. The first is that of Mr Ahmed Abu Bakar Hassan, aged 24. He comes from the Massaleit ethnic group in Darfur. In Sudan he was a political activist, opposing the persecution of his people. He was forced to flee the country and arrived in Britain in October 2004. His asylum was refused. When he was told to leave his government-funded accommodation, he slept rough in parks for a while. He eventually claimed asylum again in another name, not knowing that it was a crime to do so, and hoping that he would be given somewhere to live. He served four months in prison and was then detained. He has agreed to return to Sudan, but the Sudanese embassy has refused to admit him. He has been detained for 28 months since finishing his sentence in October 2006.
	The second case is that of Mr Ali Saifi. He is aged 27 and lived in Birmingham when he arrived in this country in 2002. He received no benefits or support from the Government, since he was never advised that he may be entitled to asylum support. As an asylum seeker, he did not have the right to work. However, he worked informally on building sites for a while, but lost his job because he did not have any papers. He moved to London and ended up on the street. He stole food from a market to eat and was arrested and convicted of theft. Early in his sentence he applied for early deportation, signing to forgo his right of appeal. However, the Home Office—not, perhaps, for the first time—had lost his passport and the Algerian embassy refused to give him a travel document. He has been detained for 22 months since April 2007.
	The men in the two cases quoted were de facto stateless, but according to the Home Office there were only 25 stateless people held at a recent date. Statelessness is therefore not the main cause of detention. I conclude by asking if the Government are studying the report that I mentioned, and whether they will respond to its recommendations at least by Written Statement. Will they take full account of the criticisms by the Council of Europe's Commissioner for Human Rights? In April 2008 he urged the Government drastically to limit administrative detention of migrants, and to introduce a maximum time limit. Will the Government also examine methods used in Sweden and Australia to achieve high rates of voluntary return for unsuccessful asylum applicants? The issue of detention has come up regularly over the last 20 years, and its improvement is long overdue. I look forward to the Government's response.

Lord West of Spithead: I greatly respect the interest of the noble Lord, Lord Hylton, and what he has done in this particular area. I have listened with great interest to what he has said, but the issues that he raises are not within the purposes of the Bill. Rather than detain the Committee, I commit to writing to him about the very important issues that he raises.

Baroness Carnegy of Lour: While we are considering Clause 49, I ask the noble Lord why this clause is in the Bill at all. When the UK Borders Act 2007 went through your Lordships' House there was great discussion, in which I took part, about why Scotland was not included in the provision that enabled a designated immigration officer to arrest somebody whom they suspected. We were told that it was quite unnecessary because the police would always be present at a port in Scotland. I remember arguing that this was not the case and that the Scottish border would leak like a sieve. Can the Minister tell the Committee why the Government have changed their mind on this matter? I think it is excellent that they have done so, but I wonder what their reason is. I am sorry that I did not give the noble Lord notice of my query, but as the clause is being considered, I wonder if I might ask.

Lord West of Spithead: I understand that it was because we had quite a dialogue with the Scottish legal system about how the police can be used in a port. This was related to the holding of someone for three hours before anyone came. It is quite right that that provision has not been required in Scotland in the past. As a result of that discussion, we had to make some changes because immigration is not a devolved issue. It was related to those relationships. That is exactly as I understand it. I can go into more detail in a Written Answer if the noble Baroness would like.

Baroness Carnegy of Lour: I thank the Minister but I do not need any more detail; I just wondered what had happened. Clearly the Government have decided that they were wrong last time and have changed their mind. That is very good news.

Lord West of Spithead: I am always very wary of U-turns, if I may say so.
	Clause 49 agreed.
	Clause 50: Transfer of immigration or nationality judicial review applications
	Amendments 111A and 111B had been withdrawn from the Marshalled List.
	Amendment 111BA
	 Moved by Lord Thomas of Gresford
	111BA: Clause 50, page 41, line 1, at end insert—
	( ) Nothing in section 31A of the Supreme Court Act 1981 (c. 54) (England and Wales transfer from the High Court to the Upper Tribunal), section 25A of the Judicature (Northern Ireland) Act 1978 (c. 23) (Northern Ireland: transfer from the High Court to the Upper Tribunal) or section 20 of the Tribunal, Courts and Enforcement Act 2007 (c. 15) (transfer from the Court of Session to the Upper Tribunal) shall permit the transfer of any application where the application calls into question a decision under—
	(a) the British Nationality Act 1981 (c. 61);
	(b) any instrument having effect within paragraph (a); or
	(c) any other provision of law for the time being in force which determines British citizenship, British overseas territories citizenship, the status of a British National (Overseas) or British Overseas Citizenship."

Lord Thomas of Gresford: Clause 50 is concerned with judicial review in Part 4 of the Bill. The Tribunals, Courts and Enforcement Act 2007 set up a new system of tribunals, but the transfer of immigration and nationality judicial reviews was excluded. What was the purpose of, and reason for, that? The noble Baroness, Lady Ashton of Upholland, told us in Grand Committee that judicial reviews in immigration cases were particularly sensitive, as indeed they are. They engage absolute rights against torture and inhuman and degrading treatment, and involve complex issues under the Human Rights Act. The noble Baroness also said that there was no question of removing the statutory bar on the transfer of judicial reviews at that time because it would be necessary to review how the transfer to the Upper Tribunal of all the other tribunals had worked in other less sensitive cases.
	In Grand Committee, the noble and learned Baroness, Lady Butler-Sloss, supported the noble and learned Lord, Lord Lloyd of Berwick, in relation to the requirement to have someone of the level of a High Court judge to hear a judicial review in the tribunal. She said it would be invidious for there not to be a judge of that rank dealing with it. Your Lordships will recall at Second Reading that the noble Baroness, Lady Ashton, was inclined to support this clause, not for any reason other than the pressure on the judiciary in the administrative court by the number of judicial reviews that are brought in immigration cases. However, after arguments in all directions, eventually a compromise was struck in which the Government accepted that, if they sought to remove the exclusion of these types of cases, it would be only by way of primary legislation, which is no doubt why this clause appears in the current Bill.
	The noble Baroness, Lady Ashton, also accepted that the removal of the exclusion should not be contemplated prior to there being an opportunity to review how the Upper Tribunal worked. That was the position only some 18 months ago. The Upper Tribunal commenced its work in November 2008, only two or three months ago, but the consultation on the inclusion of the Asylum and Immigration Tribunal in the two-tier tribunal service was started in August of 2008, before the Upper Tribunal ever came into existence. It was a Home Office-led consultation. The working group included representatives of the judiciary and the Home Office, but no other body was involved in that working group.
	The consultation set out two primary aims, which are interesting. The first was to reduce the immigration workload of the High Court and the Court of Appeal judiciary. The second was to assist the Home Office in its immigration work, particularly in relation to the speed with which asylum claims are dealt. Relieving the load on the one hand was of interest to the judiciary and getting immigration business through was of interest to the Home Office. All the previous assurances that this House received that it would not happen until the Upper Tribunal was up and running and we were able to assess how it worked fell by the board.
	As was recognised when we were discussing the Tribunals, Courts and Enforcement Bill, immigration judicial reviews may be especially contentious because of the failure by the Home Office as a litigant—as a party—to show proper respect for the procedure in the court and for the rule of law. Your Lordships will be aware that the Home Office has been taken to task by the courts on many occasions.
	The risk now in allowing the transfer of these judicial reviews without any opportunity to assess the capacity and the competency of the Upper Tribunal to deal with them is threefold. First, there is an immediate risk of injustice to the individual litigant in relation to his fundamental rights, including rights to liberty, life and so forth. That was not one of the aims of the Home Office-led consultation I outlined. Secondly, there is a risk that inadequate handling of these judicial reviews by an untested tribunal will result in an increase in the workload of the supervising court—the Court of Appeal. If judicial reviews go to the Upper Tribunal, which has only just started, that will result in a greater workload for the Court of Appeal. Thirdly, there is the risk of reduced supervision of the Home Office resulting in it taking greater liberties, leading to more instances of injustice and increased litigation.
	The introduction of Clause 50 to this Bill is completely premature and contrary to the assurances given to this House when we were discussing the Tribunals, Courts and Enforcement Bill only a very short time ago. That is why this clause should not stand part of the Bill. I now move to the particular amendments which raise other important issues in any event. We will press these amendments if your Lordships agree this clause.
	Amendment 111BA deals with nationality decisions. Immigration issues are concerned with administrative decisions. The granting of certain rights to people who come to this country is an administrative decision taken by government officials. Nationality issues, on the other hand, are concerned with status. They are concerned with the declaration of whether an individual is or is not a British citizen. Immigration issues and nationality issues are two completely different things. Under the present proposals in Clause 50, both immigration and nationality claims are to be transferred. The judicial reviews of administrative systems are presently heard in the administrative court of the Queen's Bench Division of the High Court by High Court judges. The judicial review in that context is frequent and there is a great deal of expertise in the administrative court in that regard. But nationality judicial reviews are very few. In 2007, only three cases concerning nationality law were heard in the High Court and in the Court of Appeal that led to final judgment after a substantive hearing. In 2008 there were just two.
	Unlike immigration claims, some nationality law claims can also be brought in private law proceedings as well as by public law claims for judicial review. Nationality law claims concern challenges to the refusal to register or naturalise a person as a British national of a particular description. Those are public law claims. Nationality law claims can also be an issue for declarations about whether a person has automatically acquired a form of British nationality at birth, for example. It is a completely different sort of animal from the immigration judicial reviews that are part of the subject of Clause 50. We would like to probe why the two types of issues are lumped together in Clause 50. I look forward to hearing the noble Lord on that topic.
	The other issue raised is that of Scottish claims. The Scottish Court of Session would be allowed to retain the jurisdiction to hear asylum and immigration appeals under the terms of the Tribunals, Courts and Enforcement Act 2007, at least until full and proper consideration is given to removing that jurisdiction. The clause transfers asylum and immigration appeals from the Court of Session to the Upper Tribunal. The clause proceeds on the basis of the publication Consultation: Immigration Appeals. Fair Decisions, Faster Justice. However, there has been no separate consideration of the Scottish issues in the consultation, when the issues are very different. The proposal in Clause 50 relating to Scotland pre-empts the civil justice review currently being conducted by Lord Gill, although the Minister, Vera Baird MP, told the Public Bill Committee when the 2007 Act was being debated, that,
	"we concluded that the judicially led review of the Scottish civil courts announced by the Minister for Justice in the Scottish Executive in March 2006 would be best placed to consider the detail of possible application for second appeals in Scotland".—[Official Report, Commons, Tribunals, Courts and Enforcement Bill Committee, 20/6/07; col. 36.]
	It also pre-empts the Scottish Administrative Justice Steering Group's final report. The group's first report left open the question of whether proposals made in the consultation paper are a preferable option.
	There is no obvious demand in Scotland for transfer from the Court of Session to the Upper Tribunal. In June 2008, in its submission to the civil justice review, the border agency suggested this proposal as one of a range of possibilities. However, it did not receive a great deal of favour. Thus, for separate reasons, the Law Society of Scotland, which put forward this amendment, says that the clause is premature. I beg to move.

Lord Kingsland: I also gave notice of my intention to oppose the Question that Clause 50 stand part of the Bill. I am puzzled by the fact that the clause is being promoted by the Home Office. The Tribunals, Courts and Enforcement Act 2007, to which it relates, was promoted by a department that is now part of the Department of Justice. The Home Office is a party to all immigration and asylum proceedings and therefore, for reasons that do not need elucidating, should not be, or even be perceived to be, an advocate for one form of procedure over another.
	The Tribunals, Courts and Enforcement Act allows for the transfer of certain judicial review applications from the High Court to the Upper Tribunal. However, as we have heard from the noble Lord, Lord Thomas of Gresford, primary legislation is necessary before immigration and asylum matters can be so transferred. Noble Lords may recall that this was a concession made to your Lordships by the noble Baroness, Lady Ashton, in the course of the proceedings on the Bill. The reason is clear; it is principally because disputes in that area raise issues such as the right to liberty, and the right not to be put in danger of torture, cruel and unusual punishment or capital punishment, which are distinct from those rights that are dealt with under the new integrated tribunal regime.
	When the 2007 Act became law, the Government were not confident that the transfer of applications for judicial review in this area to the Upper Tribunal was appropriate. The noble Baroness, Lady Ashton, stated in your Lordships' House that she wanted to see how the new regime worked before making changes. The new Upper Tribunal, as we have also heard from the noble Lord, Lord Thomas of Gresford, began its work as recently as November 2008, leaving hardly enough time to come to a mature conclusion about its appropriateness as a vehicle for judicial review cases in immigration and asylum matters. Moreover, as the noble Lord, Lord Thomas of Gresford, has also pointed out, in August 2008 the Home Office launched a consultation on the merits of moving immigration and asylum matters to the new integrated institutions. The response to this consultation may be complete, but it has not yet been published. I find astonishing the timing of the consultation. What was the point of initiating it at a time when no one could possibly have had any experience of how the Upper Tribunal would fare? There was no evidence to submit to it, and upon which to opine. I regard Clause 50 as a straightforward breach of faith with your Lordships' House.
	I suspect that pressure for premature change is being generated mainly by members of the administrative court. It is no exaggeration to say that High Court judges, there, are inundated by applications to judicially review immigration and asylum decisions. Statistics suggest that 70 per cent of that court's resources are absorbed by such matters. However, the only consequence of passing these matters to the Upper Tribunal would be to create a similar problem there.
	The colossal growth in such applications is the symptom of a deeper malaise: the failure of the existing Asylum and Immigration Tribunal to make fair and timely decisions. This in turn is a function of two features. The first is the structure of the immigration and asylum tribunal system, following the move by the then Home Secretary, the right honourable gentleman David Blunkett, to change from a two-tier to a single-tier system. As was widely predicted, this has proved a disaster.
	The second feature is that the procedure of the tribunals is determined not, as one might expect, by a tribunal service responsible to the Department of Justice, but by the Home Office. As I have stated, the Home Office is invariably a party to a dispute. So unsatisfactory are these procedures that it is often impossible for an appellant to know what the case against him is. The procedures also often lead to lengthy delays, so that many applications for judicial review are made, for example, in the field of deportation orders, on the grounds that circumstances have changed since the initial decision to deport was handed down.
	The Home Office has indicated that the Government intend to publish a draft immigration simplification Bill in the autumn. If that is so, it would provide us with an opportunity to address the issues that underlie the explosion of judicial review applications. Until those questions are addressed and answered, there is little point in proceeding to the measure outlined by Clause 50.

Lord Lloyd of Berwick: I, too, was surprised to find Clause 50 tucked away in the Bill so soon after the Tribunals, Courts and Enforcement Bill received Royal Assent in 2007. A key feature of the Act was that asylum and immigration cases were excluded from the operation of Section 19, so that High Court judges sitting in the administrative court are not obliged to transfer such cases to the Upper Tribunal, and indeed are prohibited from doing so. The purpose of Clause 50, as has been pointed out by both noble Lords who have spoken, is to remove that prohibition. So there are two related questions for the Minister. First, why were asylum cases excluded from the operation of Section 19 as recently as 2007? Secondly, why is he seeking now to reverse that exclusion?
	The answer to the first question is relatively easy and has already been given by both noble Lords who have spoken. Asylum cases have always given rise to sensitive issues, and they often give rise to difficult questions of fact and law, some of which end up in the House of Lords, as I know from my personal experience. As the late Lord Bridge said of one such case, R v the Secretary of State for the Home Department Ex parte Bugdaycay, decisions in asylum cases may, and sometimes do, put the applicant's very life at risk. They therefore call, as Lord Bridge pointed out, for the most anxious scrutiny. That must be right, and is one good reason why such cases should be dealt with by judges of the standing of High Court judges in the administrative court.
	However, there is a second reason. The current workload of the AIT is very heavy. It may have been thought that the judges of the new Upper Tribunal should gain experience in other, less sensitive and less pressurised, areas before being swamped with asylum and immigration cases. It is not only the difficulty of such cases, but their number, which is of concern.
	A third possible reason for excluding immigration cases in 2007 is that immigration law and practice seem to be in a constant state of flux. We are at this moment anxiously awaiting the so-called simplification Bill that the Minister has promised for this Session. It may have been thought that it would be more sensible to keep immigration cases where they are, at least until the law has settled down a bit. Indeed, I think that I am right in saying that there is an important immigration case currently being heard in the House of Lords at this moment, but I may be wrong about that.
	Each of those three reasons is a good reason—there may be others—why immigration cases were left out of Section 19 when the 2007 Act was given Royal Assent. I suggest that they are still good reasons why we should not act too quickly now.
	That brings me to the second question that I hope the Minister will answer: why are we changing direction now, so soon after the 2007 Act was passed? Why are we having second thoughts when we have as yet, as has been pointed out, so little experience of how the Upper Tribunal is working? It has only been in operation for three or four months.
	The answer can only be the enormous pressure under which the administrative court is currently operating. There can be no other explanation. It is important to draw a distinction between the ordinary work of the AIT and applications for judicial review. I see no reason why the ordinary work of the AIT should not be transferred to the First-tier and Upper Tribunals as soon as the judges have sufficient experience. That would be the logic behind the 2007 Act, and I hope that we will follow it through. I also hope that such cases will, when transferred, be dealt with in a separate chamber, of which the president should be a High Court judge.
	However, applications for judicial review in such cases stand on an entirely different footing. These are the sensitive cases that raise the difficult questions of fact and law, and should be dealt with by judges of the status as a High Court judge. It is for that reason that it is so important that the applications for judicial review in asylum cases should continue to start in the administrative court as they always have. However, the problem, as has been pointed out, is that there are just too many of them. Applications for judicial review are currently running at a rate of about 4,000 a year. What is needed is some way of sifting out those cases that must be dealt with by High Court judges in the administrative court as they always have been, and as, I think, everybody agreed that they should be, from those cases that could be transferred by the administrative court to the Upper Tribunal. If the Minister could find a way of doing that, then he should by all means let us have a look at it. However, as I said on Second Reading, it is to my mind essential that we should know from him what exactly is proposed before we are asked to agree to Clause 50.
	Lastly, I have spoken of the high status of High Court judges. The High Court judge is the key figure in the whole judicial hierarchy. The quality of the present High Court judges is very high indeed, and it is vital that that quality should be maintained. There is at least a risk that we will not get enough High Court judges of the right calibre to serve in the administrative court if the burden we place on them is too heavy, or if too much of the work that they are required to do could be done as well by others. That may be a question for the Lord Chancellor rather than the Home Secretary, but I thought it worth making that point in this context.

Lord Cameron of Lochbroom: I speak only to Amendment 111DA, which affects the Court of Session. Section 20 of the Tribunals, Courts and Enforcement Act 2007 provided for the transfer of judicial review applications from that court to the Upper Tribunal subject to four conditions.
	Under the Act, transfer was statutorily barred in two cases. The first is if the subject matter of an application to the supervisory jurisdiction of the Court of Session was a devolved Scottish matter. As the Minister has already pointed out, immigration is not a devolved matter. The second statutory bar related to judicial review applications relating to immigration or nationality decisions. This was constituted by Section 20(5) of the 2007 Act as condition 4. Clause 50(3) would remove that bar.
	It is important to have in mind how Section 20 operates. It contemplated two situations: first, where there was mandatory transfer, the court must transfer an application to its supervisory jurisdiction if certain conditions are fulfilled; and secondly, where transfer could be made at the discretion of the judge of the Court of Session hearing the application. In either case, transfer could only take place if the application did not seek anything other than an exercise of the supervisory jurisdiction of the Court of Session. That was condition 1.
	Condition 2 made provision for the Court of Session to specify classes of case apt for transfer by passing an Act of Sederunt made with the consent of the Lord Chancellor, an Act of Sederunt being the instrument by which the Court of Session exercises its statutory power to regulate its jurisdiction and procedures. Thus, unless and until the Court of Session exercised its power to determine which, if any, specific class of applications to its supervisory jurisdiction is to be transferred to the Upper Tribunal, and the Lord Chancellor consents, there can be no mandatory transfer to the Upper Tribunal of any class of applications.
	In the absence of any act of sederunt, there remains a discretion in a particular case for the judge hearing the application to determine that the application be transferred to the Upper Tribunal, even though the Court of Session has not specified the class of case into which the application falls as being one for mandatory transfer. That discretion would extend to immigration and nationality appeals, with the removal of the statutory bar created by condition 4. At Second Reading, the Minister referred to the judiciary's responses to the consultation paper Fair Decision, Faster Justice, which has already been mentioned. Can the Minister confirm that in their response to the paper, the judges of the Court of Session indicated that they were not able to express firm views on the proposal to amend Section 20 until Lord Gill, the Lord Justice Clerk, had reported on his review of the civil courts in Scotland? In paragraph 39 of its consultation paper, the UK Border Agency acknowledged that the process for judicial review in Scotland was,
	"currently subject to any changes that may or may not be introduced following the review ... currently being undertaken under the chairmanship of Lord Gill".
	Lord Gill has not yet reported. It might be thought premature at this stage to remove the statutory bars so far as they affect the Court of Session, pending publication of that report. This factor is fortified by a further consideration, which has already been mentioned—as I understand it, further primary legislation would be required to enable the Asylum and Immigration Tribunal to be replaced by the two-tier system which has been established by the 2007 Act. Perhaps the Minister would confirm that this is the case.
	As a footnote to that observation, I draw attention to the provision in Section 21(3) of the 2007 Act. This section gives the Upper Tribunal the function of deciding applications transferred to it by the Court of Session under Section 20. Subsection (3) states:
	"In deciding an application by virtue of subsection (1), the Upper Tribunal must apply principles that the Court of Session would apply in deciding an application to the supervisory jurisdiction of that Court".
	Can the Minister provide any assurance to the Committee as to how that provision is to be secured? At first blush it would suggest that the judge presiding at the hearing of the application should be a judge of the Court of Session. I refer in passing to the provisions of the 2007 Act, including Section 18(8), which contemplate a judge of the Court of Session being a member of the Upper Tribunal.
	A question may arise whether there is likely to be any saving of time or expense in the transfer of applications to the Upper Tribunal from the Court of Session. That is not a question, I suggest, which can be answered until Lord Gill has reported. Indeed, in the consultation paper the agency stated:
	"The Upper Tribunal would need to be well-established before any such a provision on transferring judicial review applications would be commenced and any transfers could be made. First, it would be important to ensure the Upper Tier had the capacity to deal with the additional workload quickly and efficiently. It would also be necessary to consider the best use of judicial time, the desirability of allocating cases to the appropriate level of judiciary, and the impact on judicial resources within the higher courts and the Upper Tribunal".
	While I remain open to the view that perhaps at this stage the Court of Session could make sure that there was no mandatory transfer of applications, and using its discretion judges would have to be persuaded that any application should be transferred, I suggest the better course at the moment is to defer consideration of the type of matters under review in Clause 50.

Lord Pannick: I find this matter much more difficult than noble Lords who have spoken so far on this amendment. The reason is that a very large proportion of the immigration cases that are heard currently in the High Court raise issues of no great difficulty, based on the particular facts and circumstances of the individual applicant. For that reason, many of these cases at present are heard in the High Court not by High Court judges but by deputy High Court judges—circuit judges sitting as High Court judges, a reflection of the lack of complexity of these cases. Yet these cases do constitute a very substantial proportion of the workload of the High Court, taking up a very large proportion of the resources of the court. I can see good reason why many of these cases should be heard by the Upper Tribunal, especially as there will be a right of appeal to the Court of Appeal—if permission is granted—on any point of law.
	However, I have two concerns about Clause 50. First, is it really the Government's intention to transfer all immigration judicial reviews to the Upper Tribunal? Do the Government recognise and accept that although many of these cases could be heard in the Upper Tribunal, there are undoubtedly some judicial reviews in this context which by reason of the complexity of the case, or by reason of the significance of the issues either generally or for the individual applicant, should indeed be heard by a High Court judge? If that is right, surely it is open to the Minister to think again about this matter and to come back to the Committee with a power that is more appropriately circumscribed.
	My second concern has already been expressed by the noble Lord, Lord Thomas of Gresford. I simply do not understand why nationality cases should be sent to the tribunal. These cases always, in my experience, involve complex issues of law and there are very few of them.

Lord West of Spithead: I make it clear at the outset that in speaking to this group I do not regard the decision that Clause 50 stand part of this Bill to be consequential on any decision on Amendments 111BA and 111DA. We have had a very useful discussion and very useful input. The noble Lord, Lord Kingsland, asked why this clause is being promoted by the Home Office. This is a Government Bill on which the Home Office is leading. We have worked very closely with the Ministry of Justice on Clause 50. It fully supports and is pushing this, as are quite a large number of judges. As always when it comes to issues like this I feel rather like Daniel in the lion's den, surrounded by some many experts in this field.

Lord Kingsland: I think it is more like being a lion in a den of Daniels.

Lord West of Spithead: I am not sure I agree with that.
	Amendment 111BA retains the general effect of the clause, allowing immigration judicial reviews to be dealt with in the Upper Tribunal. However, this amendment would remove the power of the relevant senior judiciary to direct that cases relating to nationality decisions must be transferred. It has been suggested that as some nationality claims may be brought before the High Court in private law proceedings, judicial review cases should also remain before the High Court.
	Clause 50 allows the judiciary to ensure that public law judicial review cases are handled in the most efficient way, including transferring them into the Upper Tribunal if that is appropriate; not necessarily to do it, but if it is appropriate. It is true that Clause 50 does not address the issue of private law cases being brought before the High Court. The fact that it is possible to bring a private law case before the High Court does not justify restricting the ability of our most senior judiciary to decide how public law cases should be heard.
	Nationality decisions do not currently attract a right of appeal, except a decision to deprive a person of British citizenship, which has rarely been used to date. This means that senior immigration judges, who would become judges of the Upper Tribunal under the unified system, do not currently have the same level of expertise in handling nationality cases as they do in immigration and asylum cases.
	It is worth being clear, however, that the Tribunals, Courts and Enforcement Act 2007 specifies that judicial review applications in the Upper Tribunal can be heard by judges of the High Court, Court of Appeal or Court of Session, and indeed these are the only judges with an automatic right to hear the applications by virtue of that Act. Other judges, including senior immigration judges, can hear applications only where the relevant Lord Chief Justice or Lord President has agreed for them to do this with the Senior President of Tribunals, who is already required to consider the need for judges to be experts in the subject matter or law relating the types of cases that they hear.
	We believe that the decision as to whether particular judges outside those specified in the TCE Act are suitable to hear applications should rest with the relevant Lord Chief Justices and Lord President. As an example, decisions to deprive people of British citizenship carry a right of appeal. If tribunal judges hear a significant number of these appeals, the chief justices and the Senior President of Tribunals may take the view that they have acquired sufficient expertise to hear judicial review cases relating to other nationality decisions. This amendment would limit their ability to make that decision and therefore to manage cases in the best interests of justice.
	Amendment 111DA retains the full powers of the clause for England, Wales and Northern Ireland, but excludes Scotland. I am aware of the concern that we should not pre-empt the ongoing reviews in Scotland and, of course, I recognise that the Scottish legal system is different from that in the rest of the United Kingdom. It is worth pointing out, however, that the power to transfer most judicial review cases into the Upper Tribunal is already in place in Scotland, and the Lord President has already made an Act of Sederunt designating a class of cases which must be transferred. All that Clause 50 does is extend existing powers to immigration and nationality cases.
	We should be clear that the powers contained in Clause 50 are permissive powers only; that is important. The Lord President is not required to designate a class of cases which must be transferred, and the judges of the Court of Session do not have to transfer specific cases if they do not believe that it is right to do so.
	If we give judges in the rest of the United Kingdom the power to transfer cases, it seems right that we should ensure that judges in Scotland have the same powers and let the Scottish judiciary decide whether to use them. The chief justices exercise their powers with the responsibility that is expected of them and fully consider all arguments as to whether a class of case is suitable for transfer before they issue any directions. We should not restrict the ability of our most senior judiciary to manage judicial review cases as they see fit, and I therefore urge the Committee to resist both these amendments.
	I will now deal with the Question that Clause 50 stand part of the Bill. Clause 50 allows immigration judicial review cases to be transferred into the Upper Tribunal on a case-by-case basis. The clause also allows the Lord Chief Justice, the Lord President and the Lord Chief Justice of Northern Ireland, with the agreement of the Lord Chancellor, to specify a class of case which must be transferred into the Upper Tribunal. These powers are already available for non-immigration cases.
	This clause does not remove access to the remedy of judicial review. The Upper Tribunal has exactly the same jurisdiction in judicial review matters as the higher courts and may grant the same kinds of relief. It is important to make the context of this clause clear. We are hopeful that we will be able to transfer the Asylum and Immigration Tribunal—I will refer to this using its usual abbreviation, AIT—into the unified tribunals system. The unified tribunals system has been operating for other jurisdictions since November last year.
	The AIT is a single-tier appeals system, and there is a statutory right to apply to the High Court for an order for the AIT to reconsider its decision. There are clear benefits to transferring into the unified system—which is a two-tier system—in terms of removing the burden of those immigration reconsideration applications from the higher courts. That burden has been referred to by a number of noble Lords. The noble and learned Lord, Lord Lloyd, pointed out the huge pressure that there is at the moment. There is no need for a reconsideration process in the unified tribunals system, as there is a right of appeal against a First-tier Tribunal decision to the Upper Tribunal.
	Before we can make the decision to transfer the AIT, however, we must be sure that the new system will be faster, final and respected. Officials in the UK border force and the Tribunals Service are finalising work on this at the moment, and we hope to make an announcement very shortly. Other, non-immigration judicial review cases can already be transferred into the Upper Tribunal and, if we transfer the AIT, it makes sense to remove the existing bar to transferring immigration judicial reviews.
	Noble Lords have referred to the fact that the matter of transferring immigration judicial reviews into the Upper Tribunal was debated during the passage of the Tribunals, Courts and Enforcement Act, and agreed that the timing of such a measure was not right. I, too, was surprised at how rapidly after the decision was made this was being looked at. There was quite a lot of pressure, not least from the judiciary. Two years on, the large volume of immigration judicial reviews is creating a huge, significant and increasing burden on the higher courts. Last year, the Government published a consultation setting out proposals for reforming the way in which immigration appeals are heard.
	One of the aims of those proposals was to reduce the existing burden of immigration matters in the higher courts. As a result, we are deciding whether to transfer the AIT into the unified tribunals system. We are still working with colleagues in the Ministry of Justice to ensure that if we bring the AIT into the unified tribunals structure, it will result in a system which is faster, final and respected, delivering the benefits that were set out in the consultation paper last year. This clause forms part of that package of reforms. I am pleased to report that the senior judiciary supported this provision in their response to the consultation.
	We will not commence this provision unless and until the AIT has been transferred into the unified tribunals system, which may be done under existing powers. Although existing powers also enable certain members of the AIT to sit in the Upper Tribunal, we do not think that it makes sense for immigration judicial reviews to be considered in the Upper Tribunal unless and until the AIT is fully integrated within that system. This provision is needed to give the higher courts greater flexibility in dealing with immigration matters, and it is a significant part of the wider reform of immigration appeals currently under consideration. If it is considered right to transfer the AIT, we wish to be in a position to implement this clause to complete that package.
	Concerns were expressed on Second Reading that the Government intended to retain existing arrangements for the making of procedure rules in respect of immigration cases. I have written to noble Lords to advise that this is not the case, and that if we do transfer the AIT into the unified system, the procedure rules will be made by the Tribunal Procedure Committee in the same way as for other cases in the Upper Tribunal.
	A number of specific questions were asked. The noble Lord, Lord Kingsland, asked about procedure rules made by the Home Office. This is incorrect. The procedure rules for the Asylum and Immigration Tribunal—AIT—have been made by the Lord Chancellor since at least 2002. We have indicated that if the AIT transfers, the rules will be made by the Tribunal Procedure Committee. The noble and learned Lord, Lord Cameron, was absolutely correct in what he said about the response made by the judges of the Court of Session. However, the important point is that this is a permissive power; the judges in the Court of Session do not have to use it if they feel that it is too soon. That point was made also by the noble Lord, Lord Pannick. The noble and learned Lord, Lord Cameron, also asked about the primary legislation required to transfer the AIT. That is not necessary. A statutory instrument to transfer the functions is what is required, and that will be subject to affirmative resolution.
	The noble Lord, Lord Pannick, asked whether there was an intention to transfer all judicial reviews to the Upper Tribunal. The answer is no. It is a matter for the judiciary which case should be transferred. That is the point: they will be able to judge it themselves and they are the people who really understand those issues. It is not for the Government to dictate because they are very sensitive issues and the judges are the right people to make those decisions.
	The noble Lord, Lord Pannick, also raised questions about nationality decisions. We recognise that nationality cases often raise very complex issues, but if we exclude them they will be almost the only judicial reviews that cannot be transferred. Again, we think that it is better to leave it to the judiciary to do that on a case-by-case basis.
	I know that this has been a rather long-winded response but I hope that it has covered most of the points and removes the remaining reservations on the matter. As I have said, I do not regard the decisions on Clause 50 to be consequential on decisions on the amendments, but I would be grateful to noble Lords if they would withdraw their amendments.

Lord Thomas of Gresford: The noble Lord, Lord Kingsland, put his finger on the problem which was created by Mr Blunkett's abolition of appeals in immigration cases and the creation of a single tier. I am sure that when he did so—although I have not had the opportunity of checking Hansard—he said that it would be a faster and more efficient way of dealing with immigration cases, which is almost exactly the language that the Minister has used in his response. He is looking for efficiency and speed. What we are looking for is justice. When you are concerned with people's lives, as all these issues are, efficiency and speed is all very well from the Home Office's point of view but it may not be the proper approach at all from the individual's point of view.
	Just as an illustration of how the problem has been created, I have been instructed while the Minister was responding that Government inaction over Zimbabwe in the last two years has led in the High Court to 150 applications for judicial review for fresh claims but 500 applications for reconsideration. It is the abolition of the second tier that used to exist that has created all the pressure on the administrative court. As the Minister has admitted, it has also caused the matter to be brought back to us prior to all the procedures that we were assured would happen and before we have the opportunity to consider how the tribunal system is going to work.
	I detected in the contributions of the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Pannick, suggestions that we should be looking to some proper way of sifting these applications and determining which should go to the Upper Tribunal and which should be retained in the High Court. The Minister refers to a case-by-case approach but this particular clause does not refer to such an approach. The clause would permit all cases of this of type judicial review to be transferred to the Upper Tribunal without there being any sifting process as to which are more important and complex and which should be heard in the High Court.
	Perhaps a way forward is that between now and Report stage for us consider whether applications for judicial review should remain in the High Court, which is the traditional role of that court over centuries in supervising inferior tribunals. The judge who considers applications for judicial review should have the power to direct that the individual case could go to the Upper Tribunal. As the noble Lord, Lord Pannick, has pointed out, many of these cases are concerned with factual rather than with complex, legal issues. An expertise would no doubt develop eventually so that a proper sifting process should occur. However, that is not in the Bill now and I believe that we can put our heads together and come forward with something that is far more satisfactory and in accord with what we were discussing when the 2007 Act went through this House. For the moment, in the hope that the Minister will respond to further consultation, I beg leave to withdraw the amendment.
	Amendment 111BA withdrawn.
	Amendments 111C and 111D had been withdrawn from the Marshalled List.
	Amendment 111DA not moved.
	Amendments 111E and 111F had been withdrawn from the Marshalled List.
	Clause 50 agreed.
	House resumed. Committee to begin again not before 8.55 pm

Northern Ireland Criminal Injuries Compensation Scheme 2009

Copy of the Scheme
	5th Report from JCSI

Motion to Approve

Moved by Baroness Royall of Blaisdon
	That the draft scheme laid before the House on 28 January be approved.
	Relevant Document: 5th Report from the Joint Committee on Statutory Instruments.

Baroness Royall of Blaisdon: My Lords, I beg to move that the draft Northern Ireland Criminal Injuries Compensation Scheme 2009, which was laid before this House on 29 January 2009 be considered. I also beg to move that the Draft of Alterations to the Northern Ireland Criminal Injuries Compensation Scheme 2002, a copy of which was laid before this House on 17 December 2008, should also be considered. I welcome this opportunity to put these proposals before the House today.
	I will deal first with the Draft of Alterations to the Northern Ireland Criminal Injuries Compensation Scheme 2002. The Northern Ireland Criminal Injuries Compensation Scheme 2002 was established by the Criminal Injuries Compensation (Northern Ireland) Order 2002. The Scheme, which came into force on 1 May 2002, is important in providing compensation, at taxpayers' expense, to the blameless victims of crimes of violence. The scheme reflects the Government's commitment to supporting people who are the innocent victims of violent crime and to ensuring that they receive some form of financial recognition of their injuries from the community by way of criminal injuries compensation.
	Compensation payments are based on a tariff of awards for criminal injuries of comparable severity. A tariff scheme sets out the amount that may be awarded for certain specified criminal injuries, covered by injury descriptors in the tariff scheme. Some 280 such injuries are listed in the tariff of awards, attracting compensation ranging from level 1 at £1,000 to level 29 at £280,000. In the more serious cases compensation can also be awarded for loss of earnings, loss of earning capacity and the costs of special care.
	In administering the scheme, the Compensation Agency in Northern Ireland received 4,922 claims for the period 2007-08 and paid a total of £13.8 million in criminal injuries compensation. The staff of the agency have provided the people of Northern Ireland with a sterling service, often in very difficult circumstances. It is only fitting that I register the appreciation of this House for the work that they do on behalf of victims of violent crime.
	Since the 2002 scheme came into operation, and in accordance with its provisions, the Compensation Agency has, from time-to-time, had to make payments to victims for injuries not included on the original list of injury descriptions. Since 2002, some 500 separate claims of this type have been processed and payments of around £4.3 million made. Noble Lords will be relieved to know that those who have suffered these injuries have had their claims met in full. However, under the terms of the tariff scheme, the claims cannot be officially closed until the new injury descriptors developed to address these injuries are formally added to the 2002 scheme.
	The 2002 order makes provision for the Secretary of State to add new injury descriptors, with corresponding levels of new awards. Such alterations to the scheme have to be approved by the affirmative resolution procedure. It is to seek that approval that I have brought this measure before the House this evening.
	The new descriptors reflect consultation and agreement between the Compensation Agency and the Criminal Injuries Compensation Appeals Panel for Northern Ireland. The agency has assessed the respective values in each case with regard to the current Northern Ireland rates for equivalent injuries. These descriptors can be added to the tariff by replacing the existing list of injury descriptors with a new list which includes the new descriptors and by updating the index.
	The Compensation Agency, with the agreement of the Criminal Injuries Compensation Appeals Panel for Northern Ireland, has recommended an additional 74 new descriptors, shown in the copy of the tariff included with the Explanatory Memorandum. That version of the tariff is identical to the augmented tariff for which approval is being sought, but it helpfully highlights those injuries which we are seeking to add to the list.
	I move on to the Northern Ireland Criminal Injuries Compensation Scheme 2009, a draft of which was laid before this House on 28 January 2009. The Northern Ireland Criminal Injuries Compensation Scheme 2002, known as the tariff scheme, provides compensation to victims of violence in Northern Ireland who have been physically and/or mentally injured, or who are a dependant or relative of a deceased victim. The governing legislation is the Criminal Injuries Compensation (Northern Ireland) Order 2002.
	Arrangements in Northern Ireland for criminal injuries compensation have, since the 1960s, been broadly similar to those in the rest of the United Kingdom. In 1996, a tariff scheme based on fixed payments for specific injuries was introduced in Great Britain, and in 2002, after a review led by Sir Kenneth Bloomfield in Northern Ireland, a tariff-based scheme was also introduced in respect of all levels of injury. The current arrangements for criminal injuries in Northern Ireland are therefore already similar to those in Great Britain, with compensation for criminal injuries set through a tariff scheme. However, as a legacy of the past 30 years, the individual value of tariff points in the Northern Ireland 2002 scheme is different from, and generally higher than, that of the scheme in Great Britain. Aside from these differences in tariff rates, the two schemes are similar in structure and concept.
	A characteristic of criminal injuries compensation in Northern Ireland has always been the comparatively high take-up rates and higher levels of compensation. Expenditure on tariff payments in Northern Ireland in 2006-07 was running at a rate almost three times that of Great Britain per capita. There remains a greater propensity to apply for compensation in Northern Ireland, even though rates of violent crime per head of population in Northern Ireland are now lower than those of England and Wales.
	I move on to the reason for change. In November 2007, the Government announced a review of criminal injuries arrangements as part of their agenda for normalising life in Northern Ireland. On 6 March 2008, we announced the publication of a consultation document proposing a new scheme under the Criminal Injuries Compensation (Northern Ireland) Order 2002. The scheme does not require primary legislation but, given that this issue will be the responsibility of the Northern Ireland Assembly when policing and justice powers are devolved, we wanted to ensure that a 60-day consultation exercise was conducted to take account of the views of the people of Northern Ireland.
	The proposed 2009 tariff scheme brings Northern Ireland's scheme closer to the Great Britain criminal injuries compensation scheme of 2008. It removes a number of anomalies which we are convinced are no longer justifiable. For example, how can we pay different amounts of criminal injury compensation in different parts of the United Kingdom for the same injury? In addition, why should someone who suffers an injury in Belfast receive more compensation than someone with the same injury in Bristol or Brixton?
	We propose this change at a time in Northern Ireland when the security and political situations have significantly improved and the need for special measures has, in the main, ended. The proposed scheme is not a precise copy of the Great Britain scheme and limited differences have been retained, but the introduction of a new criminal injuries scheme will bring about a greater uniformity of entitlement to criminal injuries compensation across the United Kingdom. However, a small number of differences between the two schemes remain. The new Northern Ireland scheme retains the position of setting no cap on compensation that can be paid in any one case. In contrast, the GB scheme sets a cap of £500,000 on the maximum payment paid under the tariff for loss of earnings and special expenses.
	Another difference is in the area of multiple injuries. Arrangements in Northern Ireland currently take greater account of the overall effect of multiple injuries than those in Great Britain. In both schemes, awards are made on the basis of adding the tariff value of the first injury, 30 per cent of the tariff for the second and 15 per cent for the third injury when calculating an award. In Great Britain, payments for subsequent injuries are not made, whereas in Northern Ireland there will be a payment of 10 per cent of the tariff rate for each further injury.
	We are also retaining the use of trusts for minor applicants. In Northern Ireland, when an application is from a minor, under the age of 18, the award is held in trust until the applicant becomes 18 years old. No equivalent provision exists in Great Britain. This arrangement ensures that payments made before an applicant turns 18 are safeguarded from misuse either by the claimant or by any other family member.
	The new scheme does not completely replicate the descriptors in the Great Britain scheme; there is one difference. The 2009 scheme does not include a descriptor for temporary mental anxiety, which in Great Britain allows for one-off payments of £1,000 for mental anxiety lasting more than six weeks. Previous experience in Great Britain regarding this particular injury has been mixed, and the Northern Ireland priority has been to focus resources on the more serious injuries.
	In Great Britain, under the Tribunals, Courts and Enforcement Act 2007, the Criminal Injuries Appeal Panel ceased to exist and appeals are now made to the First-tier Tribunal. The relevant legislation covering criminal injury compensation in Northern Ireland remains the Criminal Injuries Compensation (Northern Ireland) Order 2002 and existing arrangements for making appeals through the appeals panel remain unchanged under the proposed scheme.
	The Northern Ireland Office consultation on the proposed Northern Ireland Criminal Injuries Compensation Scheme 2009 was launched on 6 March and concluded on 4 June 2008. The responses to the consultation are summarised on the Northern Ireland Office website. There were a total of 11 responses, which, on a general level, provided a range of views from those who agreed that compensation levels should be the same throughout the UK to those who took the opposite view and argued against any reduction in criminal injury compensation levels in Northern Ireland.
	All the issues raised by respondents had been previously raised and considered as part of the development of the proposed policy change. Having considered all the responses from the consultation exercise, no amendments were made to the proposed scheme.
	I am pleased to bring forward these proposals. The Government consider all the award levels and additions to the 2002 scheme to be appropriate. The measure is limited and modest, but welcome.
	Separately, a new criminal injuries compensation scheme is an opportunity to bring the Northern Ireland scheme into closer alignment with the Great Britain scheme and so to bring about a greater uniformity of entitlement to criminal injuries compensation across the United Kingdom.
	As Northern Ireland moves closer to an ever more politically stable society, improvements in security and politics continue to evolve to produce a place where special arrangements for compensation for criminal injuries are no longer needed. This new scheme is a significant advance towards that place.
	I commend the Draft of Alterations to the Northern Ireland Criminal Injuries Compensation Scheme 2002 and the draft Northern Ireland Criminal Injuries Compensation Scheme 2009 to the House.

Viscount Bridgeman: My Lords, I am very grateful to the noble Baroness for her detailed explanation of the orders. I also thank her for making her officials available at short notice this afternoon to brief me and my team. We found that very useful.
	I can say at the outset that it is not our intention from these Benches to oppose these orders. Indeed, in so far as they can be said to represent a normalisation of the position in Northern Ireland, we wholeheartedly support them.
	Perhaps I may deal with the criminal injuries compensation scheme. I accept that the amendments to the 2002 order are necessary as a housekeeping exercise. I welcome the convergence that the 2009 order helps to bring about between the Northern Ireland scheme and that operating in the rest of the United Kingdom. This is a very positive step in the transformation of the Province into a post-conflict society. It is our belief that the sooner this happens the better, not least for the people of Northern Ireland.
	There is just one point in the Minister's explanation on which I should like clarification. I hope that I did not miss it. Will she explain why there is no upper limit in the Northern Ireland scheme when there is one for the rest of Great Britain? I certainly take her point about the greater propensity in Northern Ireland for claiming compensation, despite the rate of violent crime being proportionately lower than in England and Wales. Will the noble Baroness share her opinion on whether the changes made by the order can be expected to have an influence on bringing the rate of claims in Northern Ireland more into line with the rate of claims made in the rest of the United Kingdom? With those two reservations, I very much support the order.

Baroness Harris of Richmond: My Lords, I too, thank the Lord President for introducing the statutory instrument. It appears to be a very sensible provision to close existing loopholes within the current compensation scheme and we are content to support its provisions.

Lord Browne of Belmont: My Lords, I thank the Lord President for presenting these schemes to the House this evening. The passage of both the Northern Ireland Criminal Injuries Compensation Scheme 2009 and the Draft of Alterations to the Northern Ireland Criminal Injuries Compensation Scheme 2002 should rightly receive swift and smooth passage through this House, so in support I intend to be brief.
	Referring to the alteration to the criminal injuries scheme initially laid down in 2002, it is both important and timely that when previously undetected injuries are sustained our legislative provisions are able to provide just as adequately as they do for more conventional offences. Acknowledging that until now compensation has been available in the event of a victim sustaining a criminal injury that was not included in the 2002 tariff, it is important that our system for administering such a scheme is able fully to process an individual application. As this alteration will allow just that, I offer it my full support.
	Turning to the Northern Ireland Criminal Injuries Compensation Scheme 2009, which not only amends the rates of compensation available across the injuries outlined in the original tariff but includes the additional 121 injuries that would be provided for if the scheme is amended by the aforementioned alterations, I shall make the following observation. Without anticipating any opposition in your Lordships' House, may I say that the tenor of some of the responses received to the consultation missed the point? While criminal injuries compensation and the tariffs generally are higher in Northern Ireland than those in place for the English and Welsh schemes for reasons of historical legacy, it is not appropriate to argue that such a disparity should be maintained. Although all noble Lords have been advised through the briefing papers that victims of violent crime in Northern Ireland are three times more likely to apply for criminal injury compensation, the scheme should not be approached from the belief that either compensation satisfactorily deals with the pain and suffering caused by a criminal injury or that compensation is what victims expect. It simply ameliorates the unnecessary and unwarranted effects they have suffered. Therefore, an effective reduction in line with the scheme that exists in England should not be feared. I support the amendment.

Baroness Royall of Blaisdon: My Lords, I thank noble Lords for their strong support for these measures and for their recognition that they represent a move towards normalisation in Northern Ireland, which we all welcome.
	The noble Viscount, Lord Bridgeman, asked about the upper limit in Northern Ireland, to which I shall respond swiftly. He wondered whether the changes might contribute to the rate of claims made in Northern Ireland being lower and more in parallel with claims made in the United Kingdom. I can only suppose that that is a possibility. It will be monitored and it will be interesting to see what the rate of claims is in future. Of course, we strongly believe that all those who suffer injury should and must claim. It is their right to do so. I am also grateful to the noble Baroness for her support.
	In response to the noble Lord, Lord Morrow, I note all that he has said. In respect of those who suffered injuries not covered by the current descriptors, I can say that their claims have been properly assessed throughout and were met in full. The fact that their injuries were not covered by the legislation had no adverse effect on them. I shall have to respond to the noble Lord in writing in respect of the upper level. I am grateful for the support and am delighted that henceforth payments for criminal injuries in Northern Ireland will be broadly in line with those in the rest of the United Kingdom when these schemes have been debated by the House of Commons.
	Motion agreed.

Draft of Alterations to the Northern Ireland Criminal Injuries Compensation Scheme 2002

Copy of the Scheme
	3rd Report from JCSI

Motion to Approve

Moved By Baroness Royall of Blaisdon
	That the draft scheme laid before the House on 17 December 2008 be approved.
	Relevant Document: 3rd Report from the Joint Committee on Statutory Instruments.
	Motion agreed.

Northern Ireland Bill
	 — 
	First Reading

The Bill was brought from the Commons, read a first time and ordered to be printed.

Criminal Damage (Compensation) (Amendment) (Northern Ireland) Order 2009

Copy of the Order
	3rd Report from JCSI

Motion to Approve

Moved By Baroness Royall of Blaisdon
	That the draft order laid before the House on 17 December 2008 be approved.
	Relevant Document: 3rd Report from the Joint Committee on Statutory Instruments.

Baroness Royall of Blaisdon: My Lords, the Criminal Damages (Compensation) (Northern Ireland) Order 1977 provides a right to claim compensation from the Secretary of State for loss suffered to property as a result of damage caused in Northern Ireland by an unlawful assembly of three or more persons, by terrorist acts, or as a result of malicious or wanton damage to agricultural property.
	This amendment arises from concerns about an increase in attacks on community halls in 2007. This increase ran against the trend of a low and reducing number of such attacks in previous years. The increase in criminal attacks on community halls has highlighted both their general vulnerability and the difficulty that they may have in meeting the current criteria for eligibility for statutory compensation under the 1977 order. Their location and relative isolation has often affected claims for criminal damage compensation, where the PSNI has experienced difficulty in obtaining evidence on whether the damage was caused by either three or more people, or to certify that damage was the result of terrorist or paramilitary activity.
	The aim of the draft order is to create an additional route to compensation for community halls. There is no readily available definition of what constitutes a community hall, so it is proposed that buildings which are exempt from rates under Article 41(2)(e) or Article 41A of the Rates (Northern Ireland) Order 1977 should be eligible for statutory compensation.
	Article 41(2)(e) and Article 41A cover all properties that have been granted rates exemption on the basis that the rates authorities are satisfied that their use, or availability for use, is for charitable purposes as set out in the Recreational Charities Act (Northern Ireland) 1958. The 1958 Act defines as charitable the provision, or assisting in the provision, of facilities for recreation or other leisure-time occupation, if the facilities are provided in the interests of social welfare. I understand that a very wide range of facilities will benefit from the order. By way of illustration, it will cover facilities as diverse as the Ardoyne Youth Club in Belfast, the Loup Women's Group in County Londonderry, the Indian Community Centre in north Belfast and Ballinderry Road Orange Hall in Lisburn.
	The Northern Ireland Office consulted widely on these proposals and also referred them to the Northern Ireland Assembly. Ministers also met the Orange Order, the Gaelic Athletic Association and the insurance industry in considering how to frame this proposal. Broadly, the draft legislation was welcomed by all respondents. The majority of responses—14 out of 21—called for a sunset clause to be removed. The SDLP expressed concerns that coverage was not wide enough, thought the measure had not been adequately equality-proofed and suggested that any approach should focus on the nature of the attack, not the status of the building. The Gaelic Athletic Association also called for the draft legislation to be amended to include the GAA and other sporting, cultural and heritage organisations. The Government noted the concerns that including a sunset clause might in some way limit the effectiveness of this legislation and, after careful consideration, removed the sunset clause from the draft order.
	An equality screening exercise on this proposal was carried out. It determined that there might be a higher uptake by the Protestant or unionist communities and men, reflecting the greater number of community halls owned by the Protestant or unionist communities and the fact that some of these properties have been specifically targeted for attacks. By linking with rates legislation relating to charitable usage, the Government are seeking to focus on the disadvantage that arises to users of community halls, not just those who own them. The proposed additional criterion applies equally to all claimants that will fall within the definition of community halls, regardless of their membership of Section 75 groups.
	The Government have concluded that the Northern Ireland Office has met its statutory obligations under Section 75 and that further assessment of the policy's impact on the promotion of equality of opportunity is not required. In reaching this conclusion the Government have taken careful account of the screening exercise that was carried out, the purpose of the proposed legislation, which has the same policy intent that underlies the current rating legislation on which it relies for its definition of community hall, and further analysis of community halls that are currently exempt from rates under Articles 41(2)(e) and 41A of the rating legislation.
	The calls for the provisions to be extended to include sporting, cultural and heritage support organisations would widen the scope of the legislation far beyond its intention of being a focused measure. That would have far-reaching and indeterminate implications for criminal damage budgets, as it would move the Government into the position of being virtually the insurer of first resort and seriously distort the commercial insurance market. It would also take scarce resources from other priority areas.
	It is clear that the GAA and other cultural and heritage organisations provide valuable services and facilities to local communities, and I acknowledge that they have on occasion been subject to criminal attacks. However, where a GAA hall, or any hall, is exempt from rates under Article 41(2)(e) of the Rates (Northern Ireland) Order 1977 it will be eligible to claim compensation under this proposal. The Government's conclusion is that the legislation should not be broadened to include properties that do not meet the proposed criterion.
	The Government have looked carefully at the SDLP's suggestion that access to compensation should focus on the nature of the attack, not the status of the building. However, this would require a fundamental change in the Government's approach and would offer a less certain mechanism by which to determine eligibility for compensation. The Government do not think this suggestion sufficiently addresses the practical difficulties in obtaining the necessary evidence regarding intent. On balance, the Government's approach provides a surer approach to sustaining community infrastructure when it comes under criminal attack.
	The Northern Ireland Assembly's ad hoc committee made recommendations on the sunset provisions, equality-proofing and publicising the new arrangements. I have already spoken about the sunset clause and equality impact assessment. In relation to publicising the new arrangements, the Government propose that the commencement of this legislation is publicised by means of a press campaign. Furthermore, the Compensation Agency will amend its forms and processes so that the rates exemption status of future claimants will be readily identified.
	Future costs will depend on the scale of attacks on community halls. However, based on historic levels of claims received and acceptance rates, the Government estimate that up to an additional £300,000 per year will be paid in criminal damage compensation relating to attacks on community halls.
	The Government's intention is to provide an additional route to statutory criminal damage compensation to assist all eligible community halls where they are subject to criminal damage. This order will provide support and assurance to community halls, facilities that play a vital but often underappreciated role in maintaining and sustaining the social infrastructure in the areas they serve. I am pleased to bring forward these proposals. I consider the additional criterion to be timely, proportionate and welcome, and I commend the draft to the House.

Viscount Bridgeman: My Lords, I am again grateful to the Lord President for explaining this order. As she said, it relates to a tightly defined category of community halls, which I understand includes not only halls used by one of the two main communities in Northern Ireland, but facilities used by youth groups and ethnic minorities. The Lord President gave us examples. This order provides an easier route for them to receive compensation in the event of criminal damage. We on these Benches are content that this list is narrowly defined. I agree with the Lord President that the Government should be providing assistance to isolated community halls with limited resources, which have little other recourse in the event of suffering criminal damage. I was given examples of community halls that were burned at night, when it is obviously quite impossible to know how many people took part in the crime. We also accept that it is impractical to widen the scope to sporting and other organisations. Indeed, the Lord President made the point that that could be seen as the Government becoming the insurer of first resort, which must clearly be avoided. I have a certain admiration for the ingenuity with which the rates criterion was invoked. It is a very tidy. We support this measure.

Baroness Harris of Richmond: My Lords, I, too, thank the Lord President for introducing the order. Community halls are vital in strengthening and maintaining the social infrastructure in the communities they serve, so any criminal damage caused to them puts huge financial pressure on the communities that have to repair them. This order is very much welcomed by these Benches. The Lord President spoke about the concern expressed by the ad hoc committee of the Northern Ireland Assembly about the equality impact screening of the proposals. That has been addressed, which addresses the Assembly's concern. I have only one question for the Lord President: what work has been undertaken to ensure that the order is not vulnerable to challenge? Otherwise, we support the order.

Lord Bew: My Lords, I, too, thank the Lord President for introducing the order. Unlike the instrument we discussed earlier, this order is not so much a mark of Northern Ireland's progress towards normalisation but of the phases of disruption during that progress. The spike in attacks on, for example, Orange halls, is unfortunately part of the context of this order.
	In the case of the previous statutory instrument, the trend was towards normalisation. On the tendency of the people of Northern Ireland to claim three times more than citizens in the rest of the United Kingdom for criminal injury, I am informed that not so long ago they claimed six times more than the citizens of the rest of the United Kingdom, so even there the trend is towards normalisation.
	In this case, however, we are dealing with something different: the remaining abnormality of the Northern Irish situation. The steps that the Government have taken to tackle the situation of isolated community halls and the context created by the attacks on some of them are entirely wise and reasonable. I have only one difficulty. The Lord President referred to the fact that the GAA and the SDLP disagreed with aspects of this proposal. My essential difficulty lies not in any disagreement with the Government; the case can be made that the GAA is a very wealthy organisation, is perhaps more akin to some of the wealthier rugby clubs in Northern Ireland and is therefore not like the essentially penniless organisations that the Government are trying to help tonight. My difficulty is that, although I agree with the Government, I am uneasy that there is no one in this House to put the other case. It brings home to us again the problem of the absence of representation from the nationalist community in Northern Ireland. That, to some degree, is the product of a decision by the political representatives of that community, but does the Lord President share my unease on that point?

Lord Browne of Belmont: My Lords, I am pleased to support this legislation, which will give the trustees and users of community halls across Northern Ireland a much needed boost. Those who once had the unenviable burden of trying to prove that their community hall or meeting place, which was most likely in an isolated rural setting, had been attacked by three or more people, often in the dead of night, should now have one less hurdle to jump if their hall is attacked.
	Since 1977, one feature of the criminal damages compensation system in Northern Ireland dictated that, for criminal damage of more than £200, a chief constable's certificate was required to receive compensation. The most difficult part of that process was proving how many perpetrators had carried out the attack. To satisfy the criteria, you had to prove either that three people had carried it out or that one individual had done so on behalf of a proscribed organisation. In rural Northern Ireland, that was and still proves to be an almost impossible task. As a result, not-for-profit community halls were faced with unbearable repairs and limited resources and, as time passed, insurmountable insurance premiums that inevitably led to the closure of many necessary facilities that offered a much needed focal point in their local community.
	This amendment to the criminal damage legislation is regrettably necessary simply because such attacks are not rare. When the Northern Ireland Assembly considered this legislation before producing its report for Parliament's consideration, representatives of the Grand Orange Lodge of Ireland gave a breakdown of attacks on their halls from 1971. The total was almost 300 attacks throughout that period. In 2007, a time of peace in the Province, 28 Orange halls were attacked. There were four major incidents, and in a fifth incident a JCB was driven through a set of gates. A further three halls were completely destroyed and razed to the ground.
	Such attacks are undoubtedly politically motivated and have continued since that time. As a result, members and the local community at large have been frustrated in their attempts to socialise both culturally and religiously. Regardless of one's political beliefs, that should be abhorred and condemned. That is why the legislation will have a very positive effect. Until we reach the stage at which people no longer feel motivated to carry out such attacks, we will be in a position to ensure that they do not succeed in their aim of closing halls and removing facilities from those who wish to use them.
	Finally, I commend the Government for the sensible way in which they have approached this legislation. They have maintained its focus, refused to allow the creation of public insurance of the first instance and removed the original sunset clause that was proposed. I support the order.

Baroness Royall of Blaisdon: My Lords, I am very grateful for the strong support from the noble Viscount, Lord Bridgeman, and the noble Baroness, Lady Harris. The noble Baroness asked what work had been undertaken to ensure that the order would not be vulnerable to challenge. Legal advisers have received the proposal and are fully satisfied that it meets equality requirements under Section 75 of the Northern Ireland Act 1998. We, too, are confident that it meets all the necessary requirements.
	The noble Lord, Lord Bew, quite rightly said that the trend that necessitates the order is contrary to the trend that we discussed earlier. That is regrettable, as was clearly articulated by the noble Lord, Lord Browne, to whom I must apologise for calling him the noble Lord, Lord Morrow, earlier. The recent trend is regrettable, but we trust that it will be temporary. I am sure that the Northern Ireland Assembly will reflect on these issues in due course when the trend has gone the other way.
	The noble Lord, Lord Bew, also mentioned the GAA. I assure him that my colleague, Paul Goggins, has had meetings with the GAA and that very strong views have been expressed, quite rightly, by the nationalist community. I also have some sympathy with his view that the views of the SDLP and other nationalists cannot be expressed in this House because there are no Members from that community. I am very conscious of that, and I regret it in many ways. I am delighted that Northern Ireland has such a strong voice in this House, but it would be very good if there was a voice from the nationalist community as well as from the Ulster Unionist and other Protestant communities. I hope that this will be addressed in due course, but I do not wish to comment further at this stage.
	I hope that communities in Northern Ireland will continue to be sustainable and that the facilities which they use will be properly maintained, thanks to the order. I am grateful for all contributions this evening.
	Motion agreed.
	Sitting suspended.

Borders, Citizenship and Immigration Bill [HL]

Bill Main Page
	Copy of the Bill
	Explanatory Notes
	Amendments
	3rd Report from DP Committee
	5th Report from Constitution Committee

Committee (Third Day) (Continued)

Clause 51: Duty regarding the welfare of children
	Amendment 112
	 Moved by Baroness Miller of Chilthorne Domer
	112: Clause 51, page 41, line 16, leave out "who are in the United Kingdom"

Baroness Miller of Chilthorne Domer: Clause 51 brings in a duty regarding the welfare of children in the carrying out of immigration and nationality functions. We certainly welcome this duty to act in regard to the welfare of children. We feel that it would have been even better if the new Bill incorporated the key sections of the UN Convention on the Rights of the Child. However, we certainly welcome the recognition in this clause of the importance of including those functions.
	The purpose of my amendment is to see the extent of this duty. My amendment would insert the words,
	"who are in the United Kingdom",
	as it is not clear whether the clause covers the UKBA staff based abroad, immigration functions at juxtaposed controls, entry clearance points and escorted removals from the UK. Of course, the clause is modelled on Section 11 of the Children Act 2004, which, interestingly, is not restricted to children who are in the UK. The inclusion of this caveat might be because the Government continue to be very worried that if they make this clause any stronger and have a need to safeguard and promote the welfare of children beyond a point that they remain in the UK, it might impede UKBA staff from carrying out their immigration functions; for example, removing a child and their family from the UK at the end of the asylum process if their claim has failed and their appeal rights have been exhausted.
	We do not think that such a fear is founded. The Government's own admission is that that would not be the case because during the passage of the Section 11 legislation, to which I have just referred, Ministers stated in the House,
	"We have been very careful in the way in which we have worded this clause: we do not put a duty on agencies that would make them unable to fulfil their primary functions".—[Official Report, 17/6/04; col. 995.]
	The exploration of exactly what the Government mean is important when it comes, for example, to the forcible removal of unaccompanied asylum-seeking children to their countries of origin. That has raised a number of issues. Although it is not always easy to obtain information on exactly what happens in such cases, they continue to cause some concern. I hope that the Minister will be quite clear on the extent of this clause and on the functions of UKBA, which it will cover. I beg to move.

Baroness Fookes: I remind the Committee that if Amendment 112 is agreed I cannot call Amendment 112A by reason of pre-emption.

Lord Ramsbotham: I have put my name to this amendment because it is extremely important, bearing in mind the responsibility of British officials who are serving, for example, in consular and other posts overseas and should understand all the issues involved. In particular, if you go through the implications of the amendment, the training of people in the issues concerned with children is important for those officials as well. I understand that the Home Office has suggested that this amendment might be inappropriate because it might suggest that British officials overseas should involve themselves in such activities as the exploitation of children in employment in certain factories and so on. That is not the point. The point is that all people who deal in any way with children being returned from the United Kingdom should understand all the issues, including those to do with child safety, so that they can give proper advice to those who are responsible for making decisions in this country, which makes the training and understanding of those people all the more important.

Baroness Hanham: I, too, have added my name to this amendment. There should be a requirement to care for children in transit. There is a danger that children who are passing through the country may not get quite the same attention from the border agency as others who are coming in. That might be helpful.

Lord Hylton: I agree with my noble friend Lord Ramsbotham that it would be better to leave out the words,
	"who are in the United Kingdom".
	However, the noble Baroness, Lady Hanham, has made a very important point about transit. In the past year or two there have been more suspicions and perhaps some actual proof of children being trafficked into or through Britain for purposes of benefit fraud. This is a fairly new kind of trafficking, which I ask the Government to take very seriously.

Lord Avebury: I wish to underline what my noble friend said about the juxtaposed controls. That is particularly important, bearing in mind the powers of officials to detain any person in the juxtaposed controls, the Channel ports, where people, including children, may be questioned and detained for a certain length of time. The juxtaposed controls are so important because oversight of them is less intense. I think I am right in saying that the chief inspector has once been to look at them. They do not have the same intense scrutiny by the voluntary agencies that places of detention in the United Kingdom enjoy. The risks to a child of being ill treated in such a place, where a lot of the staff contractors employed by the Secretary of State are not direct UKBA officials, must be accentuated.
	I am really puzzled as to why it was thought necessary to confine this obligation to the United Kingdom. I should be grateful if the Minister would explain how the UK Border Agency code of practice for keeping children safe from harm applies in the juxtaposed controls as it does in the United Kingdom.

Baroness Howe of Idlicote: I, too, am keen to support this amendment and I raised the issues at Second Reading. A lot of points have already been identified. Clearly, to have on the other side of the border, from which various people will want to come into this country, staff who are not as well educated and trained to have proper regard for the welfare of the child—I agree entirely with my noble friend on that point—as we are all now rightly required to do, can be very dangerous. I hope, with other noble friends, that either this can be explained to our satisfaction or that the Government will go and think carefully about removing a quite small phrase. It is, however, an important phrase because all of our officials should be having regard to the welfare of the child, and all of us are pretty worried about the number of children who have entered this country. We do not know the numbers or why they are here but mostly, whether for benefit fraud or whatever, it is not for very desirable reasons.

Baroness Morris of Bolton: I was unable to speak at Second Reading, but I thank the Government for recognising the importance of the amendment that we won last year during the passage of the Children and Young Persons Act 2008, and for bringing forward a duty in this Bill,
	"to safeguard and promote the welfare of children".
	We won by a resounding number, because it was the right thing to do.
	However, I share the concerns of the noble Baroness, Lady Miller, and my noble friend Lady Hanham that these amendments express: that duty should not just apply to children who are in the UK, but have equal application to children who come into the sphere of activities of the UK Border Agency staff abroad or when a child is in transit, particularly as it could enormously help the identification and early support of trafficked children. We should never underestimate the high regard in which this country is held. That extends to our embassies, to the British Council and to all other agencies of the state operating beyond our shores, where people would, quite rightly, expect to be treated with courtesy and consideration—and that should be especially true of children.
	During the passage of the Children and Young Persons Act, I met an exceptional young man from Afghanistan. His parents saved all the money that they could, then they sent him, with a group of others, to England to live a safer life—and who could blame them? He was 15, and it took him a year and a half to walk most of the way to England. He is now in care, flourishing and enjoying school, and wants to be a doctor. For all of the children and young people who, for whatever reason, find themselves in his position, I should like to think that their experience of Britain will be good and positive, and that they will be properly looked after—wherever and for however long they are in our care.

The Earl of Listowel: I apologise to the Minister and to your Lordships, for the Minister helpfully arranged a timely meeting with Jeremy Oppenheim, the Children's Champion, earlier this week. It was arranged at fairly late notice late last week and I was involved in a conference and visiting a children's home outside London. II would very much have liked to have contacted some Members of the Committee so that they could have been at that meeting and heard the responses from Jeremy Oppenheim. Some of tonight's debate might perhaps have been curtailed in consequence. I apologise to the Minister and I am most grateful. The meeting was extremely helpful.

Lord West of Spithead: It became apparent at Second Reading that, in terms of intent, we all feel this clause to be our own—I think that the noble Baroness, Lady Morris, referred to that—so I can be sure that it is generally welcomed and the right way to go. I understand that these probing amendments define some of the details and I welcome the opportunity to debate this important clause, which places a duty on the Secretary of State to ensure that immigration and customs functions are discharged
	"having regard to the need to safeguard and promote the welfare of children".
	Subsection (4) places a similar duty on the Director of Border Revenue.
	I begin by considering Amendments 112 and 114, since they both seek to extend the duty to children outside the United Kingdom. As your Lordships know, Clause 51 seeks to replicate the effect of Section 11 of the Children Act 2004, which already applies such a duty to a range of public bodies including local authorities, the National Health Service, the police and youth offending teams. Section 11 applies only to England, whereas the duty in Clause 51 applies throughout the United Kingdom, which sensibly reflects the geographic extent of the jurisdiction of the UK Border Agency.
	However, these amendments seek to take the duty a step further, and to require the border force to discharge its functions having regard to the welfare of children not just in the UK, but worldwide. On the face of it, this may seem an attractive proposition, but it is not practical. The duty in Clause 51, supported as it will be by guidance which we will discuss later, is based on the systems in place in the United Kingdom and cannot simply be transplanted to other countries, which may have entirely different arrangements. Moreover, it is likely that those countries would consider it to be interference in their jurisdiction if the UK border force were to seek to assume the same level of responsibility for local children as it would for children in the United Kingdom.
	We think, therefore, that our formal responsibilities under this duty have to be confined to children who are in the United Kingdom. This common-sense approach is in line with, for example, the United Nations Convention on the Rights of the Child, which also limits the responsibilities of state parties to children within their jurisdiction.
	However, we accept that UK border staff have a responsibility to take appropriate action if, in the course of their duties, they come across children overseas whom they believe to be at risk of harm. They might, for example, be suspicious that a visa application for a child was being made for the purposes of trafficking. If harm is suspected, we would expect the staff to inform the local law enforcement authorities and/or deny a visa, as appropriate.
	The UKBA introduced a statutory code of practice for keeping children safe from harm, which came into force on 6 January. That code sets out the expectation that the border force staff overseas will make referrals to overseas authorities where local or other international agreements permit or require it.
	Amendment 112A seeks to ensure that the duty in the clause applies to children whose presence in the United Kingdom is for the purpose of transit to another country. I remind the Committee that the duty will apply to any function carried out in relation to immigration, asylum, nationality and any general customs or border revenue function carried out on behalf of the Secretary of State. This will include the handling of children whose contact with the border force is as passengers who are in transit through the UK and who seek a short stay of 48 hours to accomplish that.
	Passengers who are in direct transit and transferring straightaway to a connecting flight do not need to seek entry to the UK and no immigration function is carried out. The duty would not therefore apply in those circumstances, although the staff will of course involve the police if there are reasonable grounds for believing a child in these circumstances to be at risk of harm.
	The noble Baroness, Lady Miller, asked about the extent of Section 11 of the Children Act. As I mentioned, that applies only in England, whereas this provision applies across the whole of the United Kingdom. The noble Lord, Lord Ramsbotham, asked about training of officials—quite rightly so. Children's needs feature in the training that we give to entry clearance officers overseas, who also receive briefings from the International Organisation for Migration on trafficking awareness. The noble Lord, Lord Avebury, asked how the UKBA code applies to juxtaposed controls. Section 1.13 states:
	"UK Border Agency staff overseas will also refer children to the authorities of other countries where local or international agreements permit or require".
	This applies in particular to juxtaposed controls when agreement exists with the French authorities, as the noble Lord mentioned. I hope that, in the light of that clarification and those answers, noble Lords will be content not to press their amendments.

Baroness Miller of Chilthorne Domer: I thank all those who have spoken. I thank in particular the noble Baroness, Lady Morris of Bolton, for reminding us that we do these things because they are right, particularly with regard to children. I still have some queries, because I had understood that Section 11 of the Children Act applies to any authority—for example, the police—which has to escort a child, even though it may be overseas. Perhaps the Minister will tell me whether I am wrong about that. The noble Earl, Lord Listowel, has obviously heard a great deal that we have not. Perhaps I should be reassured by that, because he is usually very questioning, but sadly I am not entirely.
	There are still a couple of areas that I am concerned about. One is that the Minister did not mention the issue of private contractors. I am sure that they are covered by the provisions and await his assurance that they are. I raised the issue because some of the most extreme cases of which I have heard, although I have not observed them myself, have been of the dawn raids and removals of families, of course including children, for whom it is traumatic to be taken from their beds at four in the morning with their family and taken away in the dark in a van. I should think that that runs counter to this clause; I do not think that it will comply once the Bill has gone through.
	Will the Minister reassure me on the issue of private contractors as well as the dawn raids for deportations? I will read carefully what he said and will take the opportunity to talk further to the noble Earl, if he is happy to do so, about his view on this. We may return to the matter on Report, but I shall leave a little gap before I withdraw it to see what the Minister has to say on those two points.

Lord West of Spithead: I assume that the noble Baroness is talking about a "dawn raid" in this country; of course, this Bill covers anything that happens in this country. Our responsibility for looking after children is covered by that, because it is taking place in this country. As for escorting children overseas, when it is carried out by UKBA staff or contractors, the duty will apply. What we cannot do is require the duty to apply on the soil of another territory. That is where the difficulty lies.
	To my knowledge, Section 11 applies only in England. If it is different from that, I shall come back on that. But as I understand it, that is where it lies.

Lord Avebury: I shall just probe the Minister a little further about the juxtaposed controls. Here you have a situation that is unique, in that the children are in the custody of the UKBA. Certain powers have been granted to the UKBA by agreement of the French and Belgian authorities; they allow us to detain, to question, to search, and so on, those persons who come under the juxtaposed controls. That includes the children. If all those functions have been transferred from the state that has jurisdiction, why could they not transfer also the obligations to safeguard welfare of the children?

Lord West of Spithead: All I can say—and I cannot go into detail on that—is that UKBA staff have to refer to the authorities of other countries in those juxtaposed control conditions in France. I can write to the noble Lord on the detail of that, but that is the situation as it stands at the moment. As for private contractors, the answer is that, yes, these provisions include them at Clause 51(1)(b).

Baroness Howe of Idlicote: I shall just probe a little further on this. Is the Minister saying that if, on the other side of a border, in another country, embassy staff are suspicious that there may be an ulterior motive in some of the trafficking that is going on involving children, they would alert people at this end? Will they be trained sufficiently to do just that, so that as, when or if any of those individuals and children come over, border staff will be sufficiently alert to deal with the situation? Are we satisfied that that is happening now? If not, what is in this Bill that will make it more effective?

Lord West of Spithead: The position as regards children abroad, as I say, is that our people are trained and taught what to look for. If they see something that they feel is wrong happening with a child, they will contact the authorities if the country that they are in is one where we are able to deal with the authorities and let them know that it is happening. In other words, the country would not be in the category of those where one would, perhaps, not want to mention it in case it ended up being worse for the family and child. They have to be countries that we have agreements with. Clearly, when it comes to something such as getting a visa, or anything that applies in this country, all these rules apply. There is a whole raft of different conditions—such as other conditions in the Children Act—that apply. We will come to them in later amendments. They cannot possibly all be applied on someone else's territory; we would feel rather annoyed if someone in this country started handling children on UK territory in the way that they felt was right under their law. We would be upset by that. All that we are saying is that we cannot do that.

Baroness Miller of Chilthorne Domer: I can accept what the Minster is saying and I am sorry to have to labour the point. However, what if, for example, a child abroad has made an application through a consular post? In such a case, a refugee's children—who are minors—may make an application for family reunion. They would apply to join a parent who had been accepted as a refugee by the UK. In cases such as the one that we are being told about, it has taken several years of litigation before a challenge to the refusal to the child succeeded. During this time the children suffered severe psychological and physical ill health. That happened on the soil of another country, but the consular post is dealing with that application. That is not really interfering in the affairs of the country because it absolutely has to do with the child's application to this country. That is one reason why we want to look into this a little further before Report.
	It would also be tremendously helpful if the Minister could send a note to tell us how, when families—including children—are taken from their own homes to detention centres or aeroplanes, that will work with the new Clause 51. Will there still be dawn raids? If so, will there be additional safeguards? Will they no longer exist because Clause 51 will preclude them? Could the Minister think about sending us some notes on what the new guidance will be when Clause 51 comes in?

Lord West of Spithead: I do not see any problem with that. I think we will come to more of the details in other amendments. If, after that, the noble Baroness would still like a note, I have no difficulty in sending one with those details. Maybe I have not been clear about the situation in which this applies. Whether the duty applies is absolutely determined by whether the child concerned is in the UK or overseas. The location of the border staff exercising this duty is immaterial; it is a matter of where the child is. For example, a grandmother could apply for a visa to travel to the UK to care for a sick grandchild. Because the child is in the UK, the border force would have to consider the application, having regard to the need to safeguard and promote the welfare of the child. This would be the case despite consideration taking place outside the UK. It depends on where the child is.

Baroness Miller of Chilthorne Domer: I thank the Minister for that. I realise that we may go over some of this detail again later but I am sure that, in any case, we will welcome the sight of some draft guidance on this. I will mull over everything that has been said and look again at any gaps, if any still appear after I have reread what the Minister has said.

The Earl of Listowel: Before the noble Baroness withdraws the amendment, may I make one remark? This is clearly a complex matter. I am a little concerned that, at this stage of the Bill, we may be making quite definite interpretations of what this clause means. This might be seen by others as setting a precedent and setting out quite clearly what needs to be done. Perhaps it is indeed better for us to come back to this. I think of this in particular with regard to whether the duty operates with a child on our soil or another country's soil. I can imagine a situation, for instance, of a school party going abroad and the teacher still being bound by Section 11 of the Children Act. If UKBA officials were dealing with the child in Calais they might still be bound by the safeguarding elements in the Bill. I am a little concerned that we should wait until the next stage of the Bill to look at this a little more closely.

Lord West of Spithead: I share the noble Earl's concern. I am sorry that I did not acknowledge that fact but I am delighted that he was able to have that briefing. This is a complex area and having a briefing like that is useful because it lets one see the broad perspective. I hope it was useful.

Baroness Miller of Chilthorne Domer: I absolutely agree that this is a complex area. That is why it would be a shame to curtail this discussion and not have it again on Report. Any additional information the Minister can send to us in the mean time will be welcome. I beg leave to withdraw the amendment.
	Amendment 112 withdrawn.
	Amendment 112A not moved.
	Amendment 112B
	 Moved by Baroness Hanham
	112B: Clause 51, page 41, line 24, at end insert "including the prevention of trafficking of children"

Baroness Hanham: I hope that the Minister will be able to accept these amendments today because they reflect a most serious concern that has already been referred to—the trafficking of young children. The first two amendments in this group can be seen as providing belt and braces support for Amendment 117B. That amendment effectively inserts into the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 the additional considerations that a person is being exploited if he or she is under 18 and in a position of vulnerability or subject to an abuse of power.
	It has not been easy to get this clause into the Bill, but this is the most effective of closing the loophole that the Government have allowed to arise in the protection that the law provides for very young children. I thank other noble Lords and outside organisations, including the Immigration Law Practitioners' Association and the Refugee Children's Consortium, for their work in this area and for their briefing.
	There is a very real and dangerous loophole that I want to explain to the Committee, but I want to make the point that while we applaud the Government for carrying forward Clause 51, which is largely thanks to my noble friends on the Opposition Benches, none of us can say that this Bill fully covers the welfare of children unless we look at the lacuna that has arisen in the present law. I know that the Government share absolutely the aim of protecting the youngest and most vulnerable members of society because they have told us that on innumerable occasions. It is my fervent hope, therefore, that the noble Lord will take on board what I and other Members of the Committee have to say and accept these amendments.
	If we return to the debate on the 2004 Bill, now the Act, when the provisions on the trafficking of children in what is now Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 were being debated, we can chart the course of this story. The Government accepted that their original drafting of that Bill was inadequate to deal with the trafficking of babies and young children and, potentially, other people with special vulnerabilities. The Government amended the Bill to address that. It was considered at the time by some in this House that the government amendment, which is now part of Section 4 of the Act as passed, was inadequate and hence an amendment was tabled to address that.
	At Report in your Lordships' House on the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 my noble friend Lady Anelay raised the risk of a lacuna and was supported by many other noble Lords. The concern then, as now, was that the trafficking provisions were suitable to help only those people who were in a position to know that they were being trafficked. The noble and learned Baroness, Lady Scotland of Asthal, offered an assurance that the Government did not think that the lacuna existed; and said that in any case the courts would be able to construe Parliament's intention. The noble and learned Baroness referred to the doctrine in Pepper v Hart 1993, AC593, which held that a reference can be made to ministerial statements in Hansard only if legislation is ambiguous. Under the Pepper v Hart doctrine, if it is not ambiguous, the courts cannot look at the case.
	It seems that the existing legislation is not ambiguous: it covers only those people who are aware that they are being induced or coerced. A baby, or a very young or vulnerable person, cannot be in that position. They fall foul of a loophole in the law. The Crown Prosecution Service does not consider that the existing legislation allows it to prosecute in certain cases of child trafficking.
	The result of this can be seen in the Peace Sandberg case. Noble Lords may remember that on 16 May 2008, Peace Sandberg was jailed for 26 months at Isleworth Crown Court after being found guilty of facilitating illegal entry into the United Kingdom. The illegal entry in question was that of a baby, believed to have been purchased in Nigeria, allegedly so that Miss Sandberg could claim to qualify for priority housing in this country. Importantly, Miss Sandberg was not prosecuted for trafficking, because it was concluded that Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 was inadequate to capture the trafficking of babies and very small children.
	That is the situation that our amendment is designed to prevent. It is no good to say that offenders will be caught and prosecuted for another offence, as in the Peace Sandberg case, because we cannot always know that that will be the case. There is a problem with the existing law: many organisations say so. Our amendments would fix that problem. They would ensure that babies and young children are covered by the Act. I feel sure that no one on any Bench in your Lordships' House would argue against strengthening the Bill in its protection of the most vulnerable. We are dealing with a disgusting crime and I feel hopeful that the Minister will accept our proposals. I beg to move.

Lord Hylton: In the previous group of amendments, perhaps I should have mentioned that when children are trafficked for the purposes of benefit fraud, often they may be disguised as children travelling in the care of a relative. That is another instance where great vigilance is needed.
	Amendment 117B in this group is important. Members of the Committee, as well as the Government, will be aware of cases, usually in the London area, where young people have been imported, mainly from Vietnam, as forced and exploited labour for cannabis-growing houses or plastic domes. I hope, but do not know, that the police have this form of crime more or less under control. If they have not, the amendment could be helpful in dealing with it.

Baroness Howe of Idlicote: I also support the amendment. It may well be that it can be explained in a way that will satisfy all of us who are concerned about the whole issue. The way in which the noble Baroness, Lady Hanham, explained the issue and the history leading up to it reminded me very much of the debate we had on it at that time. We would therefore want a fairly specific answer to it.

Baroness Miller of Chilthorne Domer: We on these Benches are grateful to the noble Baroness for tabling the amendment. Although we will not know exactly how many young children and babies, in particular, are trafficked, the Minister may have in his briefing the number of prosecutions that there have been and the penalties given to the prosecuted traffickers. Giving us an idea of the scale of prosecution would be helpful. I certainly have no idea about that at the moment.

The Earl of Listowel: I speak to Amendment 116; I hope that I am not speaking out of place. It might be interpreted as also including those children and young people about whom there is some uncertainty as to whether they are children or adults. This has been a bone of contention for a long time. I look to the noble Lord, Lord Avebury. It may be better to save this for a later debate. Very good; I will.

Lord West of Spithead: I am grateful to the noble Baroness and to other Members of the Committee for seeking to ensure that the duty will apply to any work done by the UKBA to prevent trafficking of children. Such is the purpose of the two amendments here, as well as an amendment seeking to apply the duty to all children.
	On Amendment 112B, human trafficking, as the Committee agrees, is an appalling crime. Our overall aim is to make the United Kingdom a hostile environment for trafficking and to protect its victims. The United Kingdom therefore adopts a victim-centred approach to combating trafficking, including child trafficking. This is embodied in the UK Action Plan on Tackling Human Trafficking, updated in July 2008, which has a specific chapter on child trafficking and their care. The duty to safeguard and promote the welfare of children applies to all children in the UK encountered by the UK Border Agency in the discharge of its functions, which includes the prevention of trafficking and enforcement activities.
	On December 17 2008, we ratified the Council of Europe Convention on Action against Trafficking. This sets out minimum standards of care for victims of trafficking. Within that, we are giving specific consideration to the needs of child victims. We are also compliant with other relevant international instruments, including the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, and the EU framework decision on trafficking which sets out EU legislation on this issue and also has a focus on child victims and their welfare.
	While immigration considerations are important, trafficking is a much wider issue. Human trafficking is viewed primarily as a serious organised crime by international bodies such as the UN, by the UK Government and by law enforcement agencies such as the Serious Organised Crime Agency, for which combating organised immigration crime, including human trafficking, is their second-highest priority. It therefore includes, but is not limited to, immigration considerations.
	An amendment to include combating trafficking in the list of immigration functions of the Secretary of State is therefore not appropriate. However, it is also not needed. We already take a victim-centred approach to combating trafficking. I trust that the noble Baroness will be content to withdraw the amendment.
	The second amendment seeks to say that all children in the United Kingdom will be included in the duty. The amendment is unnecessary because the current definition already applies without any qualification or reservation to all persons under the age of 18. I should like to reassure Members of the Committee that we have no intention of treating children in the immigration system any differently from other children in the UK. Quite the opposite; we have said on numerous occasions that every child matters as much if they are subject to immigration control as if they are British citizens. To that end we have deliberately adopted the definition of children in the Children Act 2004 to achieve parity with the duty in Section 11 of that Act. Perhaps I may remind your Lordships that Section 65(1) of the Children Act 2004 states that "child" means a person under the age of 18, and we have used the same definition. The duty proposed in the Bill is therefore already a general duty that applies to all children. The amendment is not needed for it to be fully effective.
	The third amendment covers a serious situation, but it is perhaps not the most appropriate means of preventing the wrong that is intended. Human trafficking is not limited to sexual exploitation, and the Government are committed to tackling it in all its forms. Section 4 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 criminalises the trafficking of people, including children, for non-sexual exploitation. Concerns that young people might not be sufficiently protected were raised at that time, and the Act strengthened. Section 4(4)(d) of that Act makes it an offence to arrange or facilitate the entry into the UK of a young or vulnerable person with the intention of requesting or inducing actions of benefit to another person, that a person with the advantage of age would most likely refuse. This involves the Peace Sandberg case that the noble Baroness, Lady Hanham, was referring to, which fits directly into that.
	This ensures we cover exploitation without curtailing legitimate activity. The amendment before us is unsatisfactory because it defines as exploited any child who is in a position of vulnerability. Therefore there is a risk, and it could easily be done this way within law, of criminalising legal activities, such as bringing children to the UK for altruistic purposes, to participate in competitions, cultural visits, choirs and so on.
	The Government understand the concerns behind the amendment. We have some sympathy with that, and have previously committed to keeping the legislation on human trafficking under review. We intend to look into this matter further and address any situations where exploitation takes place in a trafficking context, but is not covered by the offence, as part of our considerations of the forthcoming Bill to simplify and consolidate immigration legislation. We aim to publish this in draft before the end of this parliamentary Session. There will be an opportunity for consultation on particular issues. On this basis I hope that the noble Baroness will feel able to withdraw her amendment.

Baroness Miller of Chilthorne Domer: I understand why the Minister would not be able to give me figures for those prosecuted for trafficking—

Lord West of Spithead: I was trying to not go on for too long, because I was looking at the clock. The figures are 103 for sexual trafficking, seven for labour trafficking, three for conspiracy to traffic—a total of 113 up to February this year since the Sexual Offences Act 2003 came into force.

Baroness Miller of Chilthorne Domer: I thank the Minister for that—that is heartening. Perhaps he would like to also publish at some point the sentences that those people received. Can he give me an assurance that the trafficked children—even if they were working in the circumstances described by the noble Lord, Lord Hylton—are never prosecuted, because they are, as the Minister correctly said, the victims of trafficking?

Lord West of Spithead: Whilst I am not aware of the specific issue that the noble Lord, Lord Hylton, raised about the cultivation of cannabis, that is a criminal offence. If the police were to encounter children in that situation, they would pursue the culprit who was doing that and safeguard the children they found.

Baroness Hanham: I am enormously disappointed with the Minister's reply. As he read out his brief he might have anticipated that I was going to be disappointed. I found the response bland and I found it completely unsympathetic to the points that were being raised. There seems to be an absolute lack of comprehension of the reason behind this amendment. It has been found that you cannot prosecute for the trafficking of babies—which happens—and the very young child who cannot be in the position to know they are being trafficked. They are being exploited, not necessarily for drugs, but they may very well be being exploited for sale, adoption or another reason.
	This is so important that there is no question that I will not come back to it. We are being advised strongly by people who represent those who have to deal with this problem and who understand the legal situation that the law is not strong enough. The law cannot do what it says it is meant to do. Simply, for the Minister to think that I will walk away from this is probably to misunderstand me. We will not walk away from this; we will come back to it on Report. If, in the mean time, the Minister would like his officials to help us to get an amendment that will absolutely close this loophole, I will be very happy to discuss it with anyone. If we do not get that situation, we will divide the House, and I think that we will win. For today, I beg leave to withdraw the amendment.
	Amendment 112B withdrawn.

Baroness Fookes: Amendment 113? Not moved?
	Amendment 113
	 Moved by Lord Ramsbotham
	113: Clause 51, page 41, line 31, at end insert—
	"( ) In issuing and reviewing any such guidance the Secretary of State must take into account any guidance issued for the purposes of section 11 of the Children Act 2004 (c. 31) (arrangements to safeguard and promote welfare) and of section 17 of the Children (Scotland) Act 1995 (c. 36) (duty of local authority to child looked after by them)."

Lord Ramsbotham: I would be sorry if this amendment were not moved, because it is extremely serious. It applies to the application of the Children Act 2004, particularly two aspects of it: first, the arrangements to safeguard and promote the welfare of children and, secondly, to take into account any guidance that has been issued for the safeguarding of children.
	Various groups of children concern me under the category of immigration. First, there are the immigration detainees who are held in detention centres, many of whom are held for far too long. There is a further amendment discussing the question of detention, so I shall not detain the Committee at this stage on that issue.
	Secondly, a very large number of people—certainly hundreds and said to be thousands—have come into this country as children, underage, and have disappeared. No one knows where they are. This is a matter that I have raised before in the context of the Health and Social Care Act. Who is looking for them? Who is trying to find them? I welcome the fact that the Government have recognised the need for the Children Act to apply to this group of children. I am enormously grateful for the briefing that I and other Members received from the Refugee Children's Consortium, the Immigration Law Practitioners' Association and the Refugee Legal Centre, which mentioned the problems of dealing with the children whom we know about—but who is looking for the children whom we do not know about?
	There are in existence local safeguarding children boards, which have been set up by statute. The Minister has already mentioned the fact that those boards have core membership that includes local authorities, health bodies, the police and others. I have called before for a census to be done by these local safeguarding bodies to discover how many of these children are in their areas of responsibility, where they are and what is happening to them. No one else is capable of doing so. If the UKBA now has an obligation under the Children Act, what is the relationship between the UKBA and the local safeguarding children boards regarding the children who appear, if we are not careful, to be falling between the cracks of the two?
	I shall go on to ask further questions of the Minister, because it seems to me that there is a great danger in allowing just the mention of looking after children under the responsibility of the UKBA to go without looking at all the other implications of this. Who is actually responsible for inspecting the conditions in which immigrant detainee and asylum-seeking children are held by social services all around the country? To ease the burden on the social services that are adjacent to the airports or ports of entry, children have been distributed all around the country to individual social services to be looked after. Their conditions are very different. Some are in bed and breakfast accommodation. Some are given education, others are not. Who is responsible for looking after this issue? The Council for Social Care Inspection was abolished recently and replaced by Ofsted. Is the UKBA talking to Ofsted about the inspection of the facilities in which these asylum-seeking and immigrant children are being looked after?
	We were going to just let the amendment go by default, but it seems to me to be a "tip of the iceberg" amendment. I really would like confirmation from the Minister that all these other implications of the looking-after of children under the terms and conditions of Section 11 of the Children Act 2004 really have been looked into and that all the other agencies with statutory responsibilities for helping and, particularly, for looking after these people who nobody knows anything about are being investigated.

Baroness Miller of Chilthorne Domer: I was initially embarrassed at my slowness at finding the papers to move the amendment but once I heard the noble Lord, Lord Ramsbotham, I was extremely glad that he moved it, incredibly ably. His name was on the amendment and he has much greater expertise than I do.
	Whenever you hear, for example, discussions around a local government table about corporate parenthood and so on, I cannot recall an occasion when they have included the children we are talking about this evening. It has always involved children who were born and lived in the area and this issue is almost entirely overlooked. The noble Lord has raised some serious matters about how these systems intermesh, because in a lot of agencies they simply do not.

Lord Hylton: My noble friend Lord Ramsbotham was absolutely right to move the amendment. The whole area is one where children and young people can fall between many stools and there are quite frequently gaps between one form of authority or service and another.
	I will mention my own experience in dealing in the matter of disappeared children. About seven or eight years ago, the social services in Sussex had a safe house not too far from Gatwick and therefore suitably located for caring for such children. However, considerable numbers of children, several dozens at least, disappeared from that safe house. Subsequently, we were promised that there would be a kind of national safe house, probably in the London area, which would be operated by a voluntary organisation. I do not think that that ever came off.
	All the same, children have gone on disappearing both from placements with foster parents and from children's homes run by local social services. The question that my noble friend raised about who is responsible for looking for those who have disappeared is very relevant and needs to be followed up.
	There are fears that in some cases children who disappeared were somehow spirited away to west Africa or re-exported from this country. It is a very serious matter.

Baroness Hanham: Perhaps I may raise a small, though not unimportant, matter. I understand that the Home Office has just decided to withdraw funding from the Refugee Council Children's Panel. That panel has been very involved in the sort of work that the noble Lord, Lord Ramsbotham, has been talking about. It helps to make decisions on the age of children in this country and generally keeps an eye on them. If the Minister does not know the answer tonight, I should be extremely grateful if he would write to let me know why this money has been withdrawn and what possible alternatives are being put forward to protect the children in the way that the children's panel has been doing. The panel has been absolutely central to safeguarding and promoting the welfare of children in the United Kingdom, and it would enormously raise the stakes on Clause 51 if the proposed Home Office procedures were to stand without its expertise and support.

Lord Avebury: I am very glad that the noble Baroness, Lady Hanham, raised this matter of the withdrawal of funds from the children's panel. It seems to me incongruous to talk about safeguarding children and, in particular, the disappeared children referred to by the noble Lords, Lord Ramsbotham and Lord Hylton, when the money that might be used to ascertain what has happened to these children and to look after them if they are recovered from whoever took them away has been cut off.
	We are talking about quite a serious problem. In 2007, 3,500 separated children arrived in the UK from places such as Afghanistan, Iraq, Iran, Somalia, Eritrea and Ethiopia. Until now, the children's panel has been working to help these young people, who range in age from 10 to 17, to access services and to help them through the asylum system. The advisers on the children's panel help as many separated children as they can, although their services are concentrated in London and the south-east, through one-to-one casework, and they have drop-in services and surgeries. They work with those who are particularly vulnerable, including those who are trafficked.
	My impression is that the children who have disappeared, especially those who have been placed in the custody of local authorities, are in fact trafficked and would not have disappeared from the system voluntarily. I feel that someone has a hold on them, enabling them to come from the custody of a foster parent or children's home or wherever they are located to be used for nefarious purposes within the United Kingdom. I do not think that it is very credible that they would be sent back to West Africa, as the noble Lord, Lord Hylton, suspected is sometimes the case.
	Why are we cutting off money from the children's panel at the very moment when we are ostensibly safeguarding the welfare of the children? Does that not seem extremely incongruous, and can the Minister tell us whether there is any possibility that the Government will reconsider this niggardly and untimely stinginess?

The Earl of Listowel: I thank the noble Baroness, Lady Hanham, for bringing up this very important point. I am not sure but I believe that the future of the panel has been uncertain for some time. I think that there was a threat of the money being withdrawn, and now some money is being given for next year so that some of its work can continue.
	However, I was comforted by the Minister's response at Second Reading, when he recognised the importance of people working on the front line and having front-line experience. We talked about the morale of the case managers. I also spoke to Jeremy Oppenheim about the changes that he has been bringing about. He has introduced the case management system so that individual case managers can follow a case from the beginning to the end and build a relationship with the asylum applicant. However we legislate, if we do not have people on the ground with experience and expertise to inform us of what is being done, we will not get what we ultimately need. During the passage of the Children Act 2004, the noble Lord, Lord Laming, said again and again that the Children Act 1989 was very good but that unfortunately it was being poorly implemented. We can legislate all through the night but if we do not have people on the ground with experience and expertise, we will not get the outcomes for children that we want. I have used the children's panel in the past to take advice or to sound it out about Yarl's Wood, and found it very helpful. These experts with long experience are just what we need if we are to protect children. It is a matter of concern and I hope that the Minister can reassure us.
	I also want to ask about the production of the guidance for Clause 51. May I have an assurance that there will be a close partnership with the Department for Children, Schools and Families and what it has done with Section 11? The new children's champion who has taken on the mantle of Jeremy Oppenheim is Christian Armstrong, so I should be interested to hear what meetings with the DCSF there may be for him in the future and to be kept abreast of the programme of meetings that they may have.

Baroness Howe of Idlicote: I have listened to this exchange, which on top of the other concerns on the previous amendment are really important. I was very concerned by the anger of the noble Baroness, Lady Hanham, that greater attention was not being paid to trafficked children. There are far too many of them for a country which prides itself that such a thing could never happen here, but it has been happening. To hear that the money is being withdrawn from some of the organisations that are active in this field is not good news at all. I hope that the Minister can assure us that if there is a good reason for taking away money from this group—nothing has given us any reason to believe that that is so—similar sums of money will be made available to other people who will pursue those interests rather more vigorously.

Lord West of Spithead: I am grateful to Members of the Committee for raising the issue of guidance, which is a crucial element in the implementation of the new duty in making it clear to the UK Border Agency, our customers and other bodies with whom we work what the duty means in practice. I am glad to have the opportunity to discuss this more fully.
	Clause 51(3) requires a person exercising the immigration, asylum, nationality or customs functions in subsection (2) to have regard to any guidance given by the Secretary of State for this purpose. Subsection (5) requires the same of anyone exercising a function of the Director of Border Revenue. Amendments 113 and 115 would require the Secretary of State in turn, when issuing and reviewing such guidance, to have regard to guidance issued under Section 11 of the Children Act 2004 and Section 17 of the Children (Scotland) Act 1995.
	These amendments are unnecessary. It is already our intention that the guidance to support Clause 51 will be developed and issued jointly with the Department for Children, Schools and Families—a point made by the noble Earl, Lord Listowel—and will reflect closely the existing Section 11 guidance, about which I will say more shortly. Before I do, I should also make a technical point about the references to Scottish legislation. Section 17 of the Children (Scotland) Act 1995 is not analogous to our new duty, and thus not an appropriate model to follow for the following reasons.
	Section 17 sets out the duty of a local authority to a child looked after by the local authority. This is a wholly different relationship from that between UKBA and the children it deals with in the UK immigration system. Section 17 section sets out that the local authority's duty to safeguard and promote the welfare of children shall be a paramount concern, whereas our new duty is to have regard to the need to safeguard and promote the welfare of children when exercising specific functions. Section 17 is also a duty for the local authority to make services available to children and to take steps to promote relations and contact between the child and the person with parental responsibilities. Again, this is quite different from UKBA's role.
	Let me now return to the substance of the amendment and the relationship between our guidance and the existing Section 11 guidance. It might assist noble Lords if I describe the existing statutory guidance on making arrangements to safeguard and promote the welfare of children under Section 11. The guidance is divided into two parts. Part 1 sets out the general arrangements to safeguard and promote welfare, which all bodies subject to the duty must have in place. It includes strategic and organisational arrangements such as senior management commitment to children; a clear statement of the agency's responsibilities towards children that is available for all staff; staff training; effective inter-agency working; and so on. Part 1 also highlights some of the ways in which the duty affects direct work with children and families; for example, in the need to ensure that children are listened to and taken seriously; to be clear when to refer children in need to other agencies; to keep good records; and so on. Part 1 is drafted in such a way as to be relevant to all the different bodies that are subject to the duty and to enable them to apply it in ways appropriate to their own functions. We think that Part 1 as drafted is equally relevant to the UKBA and should apply in the same way.
	In Part 2 of the guidance, there are individual chapters devoted to each individual organisation to which the duty applies. This is because the duty applies differently to each and every body or organisation to which it relates because it always applies within the context of the specific organisation's exercise of its specific functions. We will produce something along similar lines for the UKBA. It will set out the UKBA's primary functions, including those of the director of border revenue, and the main areas where it has a contribution to make to safeguarding and promoting the welfare of children in the exercise of those functions. Although the duty applies to all functions, it will be of greater relevance to some than others—for example, in relation to identifying possible victims of trafficking. The guidance will also set out how we will give effect to some of the broad organisational and strategic arrangements in Part 1 in the specific context of the border force.
	As the amendment recognises, the Section 11 guidance applies to England only. Therefore, in addition to working closely with DCSF, we will also work with the devolved Administrations to ensure that our guidance takes proper account of the different arrangements in place elsewhere, and we will also consult other external bodies, including NGOs, in the drafting process. The amendments make a specific point about taking account of the Section 11 guidance when the guidance on this clause is reviewed. In view of the very close relationship between the two that I have described, it will be obvious that neither could be reviewed without reference to the other and that this aspect of the amendments is also unnecessary.
	A couple of specific points were raised. One of the issues raised by the noble Baroness, Lady Hanham, was also touched on by other speakers. It is the withdrawal of funding from the Refugee Council's children's panel. We have agreed to fund it to carry out substantially the same services as in previous years; the only significant change is that we will no longer fund it to liaise with local authorities on age assessment. Instead, on that issue, we will go direct to trained social workers in local authority children's services departments, and we are providing additional funding for authorities with the largest number of such cases. Far from dropping money and taking it away, we are spending slightly more in a slightly different way.
	The noble Lord, Lord Ramsbotham, asked about missing children. If children from overseas go missing, the police are immediately informed and normal police procedures are followed. The borders staff attend local safeguarding children boards where issues are raised involving children from overseas. The noble Lord, Lord Ramsbotham, also asked about the relationship between the border force and LSCBs. The Clause 51 duty will ensure that the border force fits within the inter-agency arrangements set out in Section 11 of the Children Act. That includes liaison with the local safeguarding children boards. He also asked whether we can confirm that the full implications of looking after children that are contained in Section 11 of the Children Act are being looked into. We are exploring with the Department for Children, Schools and Families how the Section 11 duty will apply in strategic arrangements and in the framework for co-ordinating with other agencies. That will be set out in detail in the guidance accompanying the new duty. The noble Earl, Lord Listowel, asked about guidance on this liaison. I assure him that we have had a close partnership in formulating that guidance. The new children's champion will be meeting DCSF, and I have no doubt that, as part of his introduction to his work and his new role, he may well contact noble Lords.
	I hope that the noble Lord is sufficiently reassured to withdraw the amendment.

Baroness Hanham: I am lost in admiration all the time for the work of local authorities—I am a member of one, so I declare an interest as such—but I am not at all sure why the children's panel must now pass one of the most important aspects with which it deals to a local authority. Perhaps we could have a note some time on the exact reasons behind this and what the children's panel will be left to do if it is not doing this. The Minister said that there would be extra money, but it seems to me that the local authorities will spend the money that the children's panel would have been spending on finding out what age a child was. We need a little more clarity on this, if we may have it.

Baroness Miller of Chilthorne Domer: There is a bit of an issue here. If the local authorities are the very ones that are failing in their duties to these children, and the children's panel would have discovered these failures but the local authorities will now be judge and jury on this, there will not be the same third-party checks, so far as I understood what the Minister said about how the funding will work now.

The Earl of Listowel: I have one small point to add. I understand that the children's panel has been particularly effective in the past year at recognising children who have been held in detention mistakenly as adults. Indeed, it has recognised more in the past year than in previous years, so it may have the expertise to do this difficult and complex job well and to protect children well who have been mistakenly placed in the adult system. I am sure that we will come back to this. It will be interesting to learn exactly how this will work in the best interests of children.

Lord Avebury: It would be useful to have this information before next week, because one of the amendments that is coming down the track is about age assessment. If we know the answer to the question asked by the noble Earl, Lord Listowel, and my noble friend, it would very useful in informing our next discussion.

Lord West of Spithead: I agree. That is a very good point; I have no difficulty with it at all. I am particularly unqualified to guess people's ages, because I always get them very wrong. If we are doing this particularly brilliantly at the moment, I will be fascinated to find out why we should change the way in which we do it. Generally, administrators do not aim to cock things up, if noble Lords will excuse my French. They do things for good reasons, so I will certainly get back to noble Lords and explain why this is happening.

Lord Ramsbotham: I am sorry that we should end this evening on a disappointing note. There is nothing personal in this; the noble Lord, Lord West, and I have known each other for long enough to realise that that would not apply. When I was a member of the Independent Asylum Commission, we summed up the attitudes of the Home Office and the UKBA to all the points that were being put to them as a culture of disbelief. What worries me about the brief that the noble Lord read out was that it was the culture of disbelief writ large. I was amazed that it should be suggested that people reported to the police that people had gone missing. Who had reported them to the police? Which people knew that they had gone missing? I am incredulous.
	The Minister mentioned two things: that various things were being examined and that guidance was being produced. In view of the questions raised by noble Lords all around the Committee throughout our discussions today and on earlier parts of the Bill, I do not think that it would be responsible of us to let this part of the Bill go without further question. I hope, therefore, that to guide our discussions on Report, the Minister can share with us the guidance and the policy which they propose to put out so that we can subject it to the same sort of examination that we have put the Bill through, in the hope that we make it workable on behalf of the people whom we are trying to look after. With the request that we should be provided with that information before Report stage, when I promise we will bring this matter back, I beg leave to withdraw the amendment.
	Amendment 113 withdrawn.
	Amendments 114 to 116 not moved.
	Clause 51 agreed.
	House resumed.

House adjourned at 10.15 pm.